A call based on political motives, primarily to be implemented through means of economic power, to boycott a press undertaking is not protected by the fundamental right to free expression of opinion and infringes the fundamental right of press freedom.
Order of the First Panel of 26 February 1969 -- BvR 619/63 --
in the proceedings on the constitutional complaint of journalist Ernst-August A. . . . - Attorneys: Advocates . . . - against the judgment of the Federal High Court of Justice of 10 July 1963 - I b ZR 214/62 --.
The judgment of the Federal High Court of Justice of 10 July 1963 - I b ZR 214/62 - infringes the complainant's fundamental right under Article 5(1) of the Basic Law. It is set aside; the case is referred back to the Federal High Court of Justice.
EXTRACT FROM GROUNDS:
The complainant was publisher and editor-in-chief of the weekly newspaper "Blinkfüer", distributed mainly in the Hamburg area. A supplement to the paper printed the radio and television programmes of transmitters in Western and Central Germany, as well as of the transmitters in the Eastern sector of Berlin.
The publishing houses Axel Springer & Sohn KG, Hammerich & Lesser KG und Die Welt Verlags-GmbH - hereinafter the defendants - were at the period of relevance here publishers of the newspapers "Bild", "Bild am Sonntag", "Hamburger Abendblatt", "Die Welt", "Welt am Sonntag", the periodical "Das Neue Blatt", the radio magazine "Hör zu" and the illustrated periodical "Kristall". In late August 1961 the defendants sent all newspaper and magazine dealers in Hamburg a circular, with the following content:
Dear Business Colleague,
The ruthless acts of violence from which the population in East Berlin and the Eastern zone have for weeks had gravely to suffer have unleashed indignation everywhere in the free world. The chain of violations of law and measures of compulsion against our brothers and sisters in the East is unbroken. We in the free part of Germany must not leave it at reading about it in silent resignation daily, while otherwise idle. Each individual has the duty to protect freedom in his own sphere. The particular events of recent times require clear decisions on the part of the German newspaper and magazine trade too. It is becoming increasingly evident that the rulers in the zone are using radio and television as a pure propaganda instrument. Films and entertainment broadcasts that look unpolitical in programme announcements are arbitrarily interrupted so that the SED propagandists can unleash their tirades on us. In the course of these we are basely slandered, and the events in Berlin distorted in the most wicked fashion.
It therefore seems quite incomprehensible to us that there are still speculators who lend themselves to the reprinting of the programmes of the Eastern zone, for the dissemination of the lies coming from Pankow. In this test of the steadfastness of our people, one must expect responsible newspaper and magazine dealers to refrain from distributing the papers that are even now not willing to abandon printing the radio and television programmes of the Eastern zone, such as "Bildfunk", "Fernsehprogramme" and "Lotto-Toto-Express". The publishing houses AXEL SPRINGER and DIE WELT are convinced that the overwhelming majority of their business colleagues share this view and will act accordingly. It cannot of course be our object here that those who do see the position should suffer from their stance. Should there, accordingly, be individual dealers who seek to derive profit from the situation and still go on carrying material that furthers Ulbricht's propaganda, then the publishing houses mentioned will consider whether they can justify continuing business relationships with such dealers.
In the situation of the moment, you will understand the need for this appeal. So that you can keep your customers properly informed, your wholesaler will supply you with broadsheets (see attached example). Show by your attitude that as a newspaper and magazine dealer you are aware of your responsibility to German readers.
VERLAGSHAUS AXEL SPRINGER
VERLAGSHAUS DIE WELT
This circular was accompanied by a sample of the broadsheet announced, with the following wording:
No more programmes from the East!
The politically uneasy times require a clear decision by all of us. The German newspaper trade has now taken its decision. It is of the opinion that it is part of a manifest national duty for the moment no longer to offer publications that reproduce the radio and television programmes of the Eastern zone.
Radio and television from the East have become a pure propaganda instrument. We are all basely slandered and denigrated, and events in Berlin distorted in the wickedest fashion. Good entertainment programmes and worthwhile old films are interrupted to let SED propagandists loose on us with their tirades. The German newspaper trade knows what it has to do; it is not prepared to let itself be misused in this way by Ulbricht.
There are many good programme magazines to keep you informed in detail about television and radio. I am always ready and willing to go give you advice about them. But from today on there is no more room here for magazines with the Eastern programmes. I am sure you will understand.
NEWSPAPER AND MAGAZINE DEALER
On the justification that defendants were engaging in unfair competition against him because the circulars distributed contained a call for a boycott against his business, the complainant filed a suit for a finding that the defendants were obliged to make compensation for damages. The Regional Court and the Regional Appeal Court granted the petition. On appeal on points of law by the defendants the Federal High Court of Justice . . . quashed the appeal judgment, dismissed the suit and awarded costs against the complainant. On the view of the Court of Error, there was no legal error in the assumption in the appeal judgment that the circular complained of by the complainant had been published not for commercial, competitive reasons, but for political ones. The defendants' indication in the circular that they would reconsider their business relationships with dealers who continued for speculative reasons to carry publications containing programmes of transmissions from the Soviet zone could be understood to the effect that the defendants were seeking thereby purely to remove a possible obstacle to the implementation of their political intent. The object of the circular had not been to "silence" the complainant and set up a boycott against his firm; it had been directed only against the dissemination of programmes of transmissions from the Soviet zone. Both in objective and as regards the means employed, distribution of the circular had been covered by the fundamental right to free expression of opinion, which covered not only mere expression but also the effect on others aimed at therewith. It followed from weighing up the measures taken by the defendants and the complainant's interests impaired thereby that the fundamental right under Article 5(1), first sentence, GG claimed by the defendants took primacy over the complainant's commercial activity insofar as it was interfered with by the circular. Press undertakings were preferentially legitimated to the criticism exercised in the circular complained of. . . . The disadvantages possibly arising for the complainant from the measure proposed by the defendants to dealers were not so disproportionate to the object aimed at that the defendants' interest, deserving of protection under Article 5(1), first sentence, GG, in the success of their political expression of opinion had to take second place to the complainant's commercial interests affected. . . . The choice of means the defendants could employ in pursuit of their intent was determined in part by the extent of the challenge, the events at the zonal boundary and the Berlin sectoral boundary. They could therefore not be denied the announcement and implementation, in order to assert their opinion, even of commercial measures that would not have been open to them in a matter of less concern to the vital interests of their own people and certainly not in the context of a purely economic conflict.
. . .
The complainant filed a constitutional complaint against the judgment of the Federal High Court of Justice. In it he complained of infringements of Articles 2, 3 and 5 GG. The defendants' circular had been distributed with competitive intentions and constituted a compulsion. Anyone exploiting a dominant market position to use the means of boycott and of threat to cut off delivery in the event of non-compliance with a particular expression of opinion in a circular could not appeal to the fundamental right of press freedom. The thesis of the Federal High Court of Justice that a balance had to be drawn between the value that the impaired right to exercise his trade had for the complainant and the defendants' right to free expression of opinion was wrong; the complainant's trade was also newspaper publishing, entitled to the right to freedom of opinion.
. . .
The constitutional complaint is admissible and . . .
. . . justified.
The proceedings before the sequence of courts constituted a civil legal dispute, to be decided under the system of private law. But the objective value system set up by the Basic Law in its fundamental rights section affects the interpretation of these provisions, insofar as they are capable of one that conforms with the constitutional rules (BVerfGE 7,198 ). In the context of para.823(1) BGB, constitutional law is of importance for establishing the illegality of infringement. Consideration should go here on the one hand to the extent to which a boycott is covered by the right to freedom of opinion and on the other to the extent to which the complainant can lay claim to the right to the fundamental right of press freedom for himself. The Federal High Court of Justice has in the judgment challenged misjudged the scope of the right to freedom of opinion on the defendants' side; on the complainant's side, it did not take the fundamental right to press freedom into consideration.
1. The Federal High Court of Justice regards both the defendants' call on dealers to stop distributing newspapers with the programmes of transmissions from Central Germany and the indication of the possibility of stopping deliveries as justified by Article 5(1), first sentence, GG. In so doing it has extended the area of protection defined by the essence of the fundamental right too far.
The defendants' call on newspaper dealers, irrespective of the underlying motives, constitutes a call for a boycott, as being an appeal to organize at least partial barring of the complainant from selling "Blinkfüer". In view of the defendants' economic dominance and the threatened bans on delivery to newspaper dealers, this call was capable of depriving its addressees of the possibility of taking a free decision.
A call for a boycott based on assertion of particular opinion is protected by Article 5(1), first sentence, GG, in particular where it is employed as a means in the intellectual clash of opinion on a question that essentially concerns the public, that is, when it is based not on a private dispute but on concern for political, economic, social or cultural interests of the generality (BVerfGE 7, 198 ). The call for a boycott may fall under the sphere of protection of Article 5(1) GG even where its proclaimer is in a professional, commercial or other business relationship with the boycottee, since this position does not ipso facto exclude intellectual dispute. If the one calling for a boycott has a certain economic dominance, his expression of opinion and the call for a boycott that supports it may for this reason alone be lent considerable weight. This economic inequality of positions does not however by itself make a call for a boycott inadmissible because it is not constitutionally prohibited even to the economically stronger to engage in intellectual clash of opinion.
However, the means used by the caller for a boycott to implement it must be constitutionally justifiable. A call for a boycott is not protected by the fundamental right to free expression of opinion where it is based not only on intellectual arguments and thereby confined to the persuasiveness of portrayals, explanations and arguments, but goes on to use means that deprive those addressed of the possibility of taking their decision in complete internal freedom, without economic pressure. This includes in particular the threat or announcement of severe disadvantages and the exploitation of social or economic dependency where this is aimed at lending the call for a boycott particular emphasis. The freedom of intellectual debate is an essential condition for the functioning of free democracy, since it alone can guarantee public debate on objects of general interest and national political importance. . . . Exercise of economic pressure that leads to severe drawbacks for those concerned and pursues the objective of preventing the constitutionally guaranteed free dissemination of opinions and information infringes the equality of opportunities in the process of opinion-formation. It further contradicts the meaning and essence of the fundamental right to free expression of opinion, which is intended to guarantee the intellectual clash of opinion.
An assessment of the defendants' conduct according to these criteria shows that the Federal High Court of Justice has stretched the sphere of protection of the fundamental right to freedom of expression of opinion too far. Here one may, with the lower courts, take it that the circular challenged by the complainant was issued not for competitive reasons but for political ones. It appeared a few weeks after the building of the wall along the Berlin sectoral boundary, which heavily aroused public opinion in the Western world and in particular in the Federal Republic, and called for defensive response. At the same time in the GDR further restrictions on liberty and freedom of movement were introduced; and propaganda directed against the political organs of the Federal Republic was intensified. The defendants wished, according to the content of their circular, to oppose this propaganda, having themselves since summer 1960 already ceased reprinting programmes of Central German transmitters, on grounds of lack of reciprocity.
The means employed by the defendants to implement the call for a boycott are not in harmony with the fundamental right under Article 5(1), first sentence, GG. Had the defendants expressed their opinion on the reprinting of programmes of Central German transmitters in public, for instance in the newspapers published by them, and confined themselves to calling on readers to boycott newspapers and magazines involved, there could have been no constitutional objections to this proceeding. The defendants, who have taken up public interests as their own, would then have been approaching those concerned. By contrast, their circular addressed to newspaper and magazine dealers was not suitable for bringing about intellectual debate on the admissibility and appropriateness of publication of programmes of Central German transmitters among the public, because these addressees were economically or legally dependent on the defendants. The defendants had, at the time of the decision by the courts finding in the initial proceedings, a dominant position in the market as newspaper and magazine publishers. This is particularly true of the area of Hamburg, in which sales of the weekly paper "Blinkfüer" were concentrated. This power position vis-à-vis dealers as addressees of their circular was exploited by the defendants to lend their call for a boycott greater effectiveness by combining it with a reference to possible stoppage of deliveries to boycott-breakers. The fact that the announcement, presented in the form of a mere notion, was to be understood as a seriously intended means of pressure is accepted by the Federal High Court of Justice too. Accordingly, a clash of political opinion was to be sought by economic means, exploiting the defendants' monopoly position.
The factual position accordingly differs largely from that in the so-called Lüth judgment (BVerfGE 7, 198ff.). The expression of opinion by Senate Director Lüth, appealing solely to moral and political sensibility, could not at all restrict the artistic and human possibilities of development of film director Harlan, directly and effectively; for Lüth had no means of compulsion at his command to lend force to his call. He could approach only the sense of responsibility and moral attitude of those he addressed and had to leave it to their free will whether they wished to follow him. By contrast, the delivery ban threatened by the defendants could in view of their market-dominating position bring tangible disadvantages to the newspaper wholesalers and retailers affected by it, which in some cases might threaten their very existence. It would likely also have had as a consequence a withdrawal of customers who usually bought, along with the papers published by the defendants, other newspapers or magazines. In these circumstances, the dealers addressed in the circular were in view of the massive pressure of the prospective delivery ban necessarily constrained to weigh the benefits and drawbacks of non-compliance with the defendants' appeal against each other, and act in accordance with these exclusively economic considerations. Accordingly, the defendants' procedure can no longer be regarded as an appropriate means of implementing their call.
2. The judgment challenged, while . . . it did mention the defendants' assertion that the complainant could not appeal to the fundamental right under Article 5 GG because he was abusing it, did not contain a consideration by the Federal High Court of Justice of this position. Such consideration should however have been made because the complainant was publisher and editor in chief of the weekly newspaper "Blinkfüer".
The complainant was, on the basis of freedom of the press, entitled to provide the information on Central German transmission programmes that the complainants, according to the content of the circular, wished to prevent. To be sure, the Federal High Court of Justice too regards the presentation of programmes in the weekly magazine "Blinkfüer" not as legally prohibited but as permitted. It has however not drawn the consequence of counterposing the fundamental right of free expression of opinion claimed by the defendants to the press freedom in turn due the complainant for the reprinting of Central German broadcasting programmes, but instead assumed only a clash between the defendants' fundamental right to freedom of opinion and the complainant's "object of legal protection under civil law". The Federal High Court of Justice thereby failed to see the significance of press freedom for the complainant's substantive legal position.
Certainly, press organs cannot in principle appeal, in connection with exercise of freedom of opinion by others, to freedom of the press even where they have to put up with economic detriment. Freedom of opinion and of the press seek to protect free intellectual activity and the process of opinion-formation in free democracy; they do not serve to guarantee economic interests. To protect the institution of the free press, however, the independence of press organs must be secured against interference by economic power groups by inappropriate means on the shaping and dissemination of press products. . . . The object of freedom of the press, namely to facilitate and guarantee the formation of free public opinion, therefore requires the protection of the press against attempts to exclude competition among opinions by means of economic pressure.
The boycott against the weekly paper "Blinkfüer" contravened this constitutionally guaranteed freedom. It was aimed at preventing further publication of Central German radio and television programmes and withholding information from the public by eliminating further distribution of this weekly paper by newspaper dealers. But the complainant was dependent on this distributive apparatus. The defendants' conduct was directed, contrary to freedom of reporting, at suppression of information through primarily economic means.
Accordingly, the constitutional complaint is justified merely because of the infringements of Article 5(1) GG, without the need for further consideration whether the judgment challenged also infringes other fundamental rights.
. . .
Judges: Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-v. Brünneck, Dr. Brox, Dr. Zeidler.
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