a)  Council of Europe / b)  European Court of Human Rights / c)  Chamber / d)  23-06-1994 / e)  7/1993/402/480 / f)  Jacubowski v. Germany / g)  Vol. 291, Series A of the Publications of the Court / h)  CODICES (English, French).
Keywords of the systematic thesaurus:
General Principles - Weighing of interests.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Right to respect for one's honour and reputation.
Keywords of the alphabetical index:
Competition, unfair.
The applicant, former director of a news agency and director of a public-relations agency, complained of an injunction from the german courts issued upon request of his former employer. By the challenged injunction the applicant was ordered to desist from distributing his reply to a press release in which his former employer had openly put his professional abilities in question. The domestic courts had found that the applicant had acted for the purposes of competition in the context of business dealings.
The Court noted that the impugned measure had been an interference with the applicant's freedom of expression. The interference had been "prescribed by law" and had pursued a legitimate aim under the Convention, namely "the protection of the reputation or rights of others". It consequently remained to be ascertained whether the interference could be regarded as having been "necessary in a democratic society".
In the instant case the requirements of protecting the reputation and rights of others had to be weighed against the applicant's freedom to distribute his reply. The Court pointed out that the national courts that had considered the merits of the applicant's course of action had been unanimous in regarding it as an act of unfair competition in breach of "accepted moral standards", as in their view it had been mainly designed to draw his former employer's clients away to his own agency. Their judgments had been based principally on the reply's wording, especially its last paragraph, in which the applicant had clearly expressed his wish to establish personal business contacts with the addressees. The domestic courts had taken into account the fact that the applicant had been personally attacked in a press release issued by his former employer, but had attached more importance to the essentially competitive purpose of the exercise.
Accordingly, it could not be said that the German courts had overstepped the margin of appreciation left to national authorities and no breach of the applicant's right to freedom of expression had been made out.
English, French.