Germany

European Court of Human Rights: Tierbefreier E.V. v. Germany

IRIS 2014-3:1/2

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

Tierbefreier E.V. is an association based in Germany that militates in favour animal rights. A court decision prevented the association from disseminating film footage, which was secretly taken by a journalist on the premises of a company performing experiments on animals for the pharmaceutical industry (C. company). The journalist used his footage to produce documentary films of different lengths, critically commenting on the way in which laboratory animals were treated. His films, or extracts from them, were shown on different TV channels. Largely based on the journalist’s footage, Tierbefreier produced a film of about 20 minutes, with the title “Poisoning for profit” and made it available on its website. The film contained the accusation that the legal regulations on the treatment of animals were being disregarded by C. company and closed with the statement that medicines were not being made safer by poisoning monkeys. On the request of C. company, relying on its personality rights, which encompassed the right not to be spied upon by the use of hidden cameras, Tierbefreier was ordered by a court injunction to desist from publicly showing the film footage taken by the journalist on the C. company’s premises or to make it otherwise available to third persons. According to the German courts Tierbefreier could not rely on its right to freedom of expression, as the manner in which it had presented the footage did not respect the rules of the intellectual battle of ideas. Relying on Article 10 of the European Convention on Human Rights, Tierbefreier lodged an appeal before the Strasbourg Court, complaining that the injunction had violated its right to freedom of expression. The association further relied on Article 14 (prohibition of discrimination) in conjunction with Article 10, complaining that it had been discriminated against in comparison with the journalist and other animal rights activists who had merely been prohibited from disseminating specific films, but had been allowed to continue the publication of the footage in other contexts.

The European Court endorses the assessment that the injunction interfered with Tierbefreier’s right to freedom of expression. But as it was prescribed by law, pursued the legitimate aim of protecting the C. company’s reputation and was considered “necessary in a democratic society”, the Court found no violation of Article 10 of the Convention. The Court observed that the domestic courts carefully examined whether a decision to grant the injunction in question would violate the applicant association’s right to freedom of expression, fully acknowledging the impact of the right to freedom of expression in a debate on matters of public interest. The Court points out that there was no evidence however that the accusations made in the film “Poisoning for profit”, according to which the C. company systematically flouted the law, were correct. Furthermore, Tierbefreier had employed unfair means when militating against the C. company’s activities and they could be expected to continue to do so if allowed to make further use of the footage. The Court also referred to the German courts’ findings that the further dissemination of the footage would seriously violate the C. company’s rights, especially since the footage had been produced by a former employee of the C. company, who had abused his professional status in order to secretly produce film material within that company’s private premises. The Court finally notes that the interference at issue did not concern any criminal sanctions, but a civil injunction preventing Tierbefreier from disseminating specified footage. It referred to the fact that Tierbefreier remained fully entitled to express its criticism on animal experiments in other, even one-sided ways. The Court considers that the German courts struck a fair balance between Tierbefreier’s right to freedom of expression and the C. company’s interests in protecting its reputation. Hence, there has been no violation of Article 10 of the Convention taken separately. As the German courts also gave relevant reasons for treating Tierbefreier differently from the other animal rights activists and the journalist with regard to the extent of the civil injunction, the European Court accordingly also finds that there has been no violation of Article 14 in conjunction with Article 10 of the Convention.