CASE OF JACUBOWSKI v. GERMANY
No violation of Art. 10
R. Pekkanen
7. Mr Manfred Jacubowski lives in Bonn and is a journalist by profession. At the material time he was working as editor-in-chief of a news agency run by a commercial company, the Deutsche Depeschendienst GmbH, of which he was a founder member and manager. This company filed a petition in bankruptcy (Eröffnung des Konkursverfahrens) on 31 March 1983. A new company, the Deutsche Depeschendienst AG ("the ddp"), was created subsequently, and Mr Jacubowski became its sole director (Vorstand) and editor-in-chief on 3 May 1983. 8. Shortly afterwards, he instituted two different sets of proceedings. In the first (A) he sought to challenge his dismissal and in the second (B) he claimed the right to reply to a press release issued by his employer. At almost the same time, he became involved in a third set of proceedings (C) brought against him under the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act"). 9. For reasons connected with the applicant’s financial management, the ddp’s supervisory board (Aufsichtsrat) dismissed him without notice from all his duties on 17 July 1984. On 25 August it sent him another letter of dismissal on the ground that he had allegedly communicated inside information to third persons. Mr Jacubowski challenged the validity of the latter dismissal, which was renewed on 12 October. A further dismissal letter was sent to him on 28 October, after he had distributed a circular letter and newspaper cuttings among fellow professionals on 25 September (see paragraph 14 below). A final dismissal notice, based on new grounds, was sent to him on 12 February 1985. 10. At the end of legal proceedings instituted by the applicant, the Cologne Court of Appeal (Oberlandesgericht) held on 11 October 1988 that he had been validly dismissed on 28 October 1984. According to the court, the distribution of the circular and cuttings was to be regarded as such a serious breach of Mr Jacubowski’s duty of loyalty that it was not possible for the employer to continue his contract, nor could it reasonably be expected. By sending press articles to a large number of influential professionals and endorsing in the circular their objectively unfavourable statements about the ddp’s competence and business situation, Mr Jacubowski had knowingly run the risk of causing the company considerable prejudice; such behaviour on the part of a leading employee was unacceptable and therefore not covered by the constitutional right to freedom of expression. Furthermore, it could not be inferred from the circular that its main aim was to defend the applicant’s reputation and honour; it contained neither any reference to the ddp’s allegations nor any arguments in Mr Jacubowski’s defence. The circular’s last paragraph clearly showed that the sole purpose of the mailing had been to disseminate adverse comments on the applicant’s former employer and to establish contact with the addressees. 11. Mr Jacubowski challenged this judgment in the Federal Court of Justice (Bundesgerichtshof) and the Federal Constitutional Court (Bundesverfassungsgericht), but on 26 June and 25 October 1989 respectively those courts declined to accept for adjudication his applications on the ground that they had no prospects of success. 12. In the meantime, on 16 August 1984, the agency had published a press release concerning its own reorganisation. In this it also criticised the applicant’s management in the following terms: "... after the private limited company ... had filed a petition in bankruptcy on 31 March 1983, the public limited company D. - again under the management of Manfred Jacubowski - started up on 20 April 1983 with a capital of one million DM. Jacubowski’s unchanged business methods and his inappropriate behaviour to clients, together with the lack of any efficient, reliable editorial management meant that no advantage was taken of the opportunity to make a fresh start, and indeed they led to a loss of clients. Until this spring Jacubowski misled the supervisory board about vital aspects of the developments. In particular, liabilities incurred in the private company’s period of existence were transferred to the public company, and this put the D. agency into financial difficulties again. Only the timely intervention of the former finance and accounting director, K., the current director, prevented more serious harm being done, so that today D. is once again on a sound financial footing. On 17 July - the date of the general meeting - Jacubowski was dismissed without notice on account of his business incompetence ... K. was appointed sole director." 13. On 29 August and 4 September 1984 the applicant requested the ddp to publish his reply (Gegendarstellung) to the press release, but without success. He then sought an interim injunction (einstweilige Verfügung) from the Bonn Regional Court (Landgericht), but this was refused on 17 September 1984, on the ground that the proposed reply was not limited to answering the allegations of fact in the press release (gegenteilige Tatsachenbehauptung) but gave a completely new version of the sequence of events (Auflistung), which had not been an issue in the ddp’s press release. On 11 October the Cologne Court of Appeal reversed the Regional Court’s judgment and ordered the agency to accede to Mr Jacubowski’s request, which it did a month later. In the reply then published the applicant answered in detail all the main accusations contained in the ddp’s press release. 14. In the meantime, on 25 September 1984, Mr Jacubowski had sent thirteen articles from newspapers with large circulations to forty newspaper publishers and newspaper, radio and television journalists who, as clients of the ddp, had received the press release of 16 August (see paragraph 12 above). These articles gave critical accounts of his dismissal, the circumstances surrounding it and the ddp’s activities in general. They reported in particular that the ddp’s financial position had worsened again since the bankruptcy in April 1983 (see paragraph 7 above) and that some of its clients were preparing to dispense with its services, mainly because of their poor standard and the lack of certain technical facilities. He had appended a circular letter that read as follows: "The enclosed selection - which is inevitably incomplete - of articles on the Jacubowski v. D. case will undoubtedly throw light on certain matters that are still obscure, even though you may already be familiar with one or other of the accounts of the facts. Some of the facts are admittedly reported inaccurately, but they scarcely alter the picture as a whole. The pending court proceedings that members of D.’s staff affected by current developments at the agency and I have brought will ensure that all the details finally become clear. I should be glad to be able to meet you in person before too long, in order to discuss not only the past but also future developments in the German ‘news market’. I will ask for an appointment in due course." 15. Shortly afterwards, on 11 March 1985, the applicant set up a "public-relations" agency. 16. In the meantime the E. company, which had acquired 25% of the ddp’s capital, had applied for a restraining injunction (Unterlassung) against Mr Jacubowski. On 29 January 1986 the Düsseldorf Regional Court refused the application on the ground that E. had no legal interest (rechtliches Interesse). 17. On 11 December 1986, on an appeal by E., joined (Eintritt in den Rechtsstreit) by the agency, the Düsseldorf Court of Appeal refused to grant an injunction prohibiting the applicant from systematically criticising the ddp but ordered that he should desist from any further such mailings, on pain of a fine; it went on to hold that he would have to "compensate the [E. company] for all the damage that the acts [in question] ha[d] caused and [would] cause the [ddp]". The judgment was based on section 1 of the 1909 Act, which provides: "Any person who, in the course of business commits, for purposes of competition, acts contrary to accepted moral standards may be enjoined from further engaging in those acts and held liable for damages." The court held that in his circular the respondent had repeated in his own name the allegations made in the attached articles. Admittedly, he had sought to correct assertions made about him in the press release that were possibly false but he had acted above all for purposes of competition in the course of business. The court said, inter alia: "... the respondent sent his circular of 25 September 1984 for purposes of competition in the course of business. An action is said to be for purposes of competition where it is on the face of it apt to promote one person’s sales to the detriment of another’s and where it is carried out with a corresponding intention, although that intention need not be the only or the essential motive for the action (settled case-law, see Federal Court of Justice in GRUR 1952, p. 410 - Constanze I; Baumbach-Hefermehl, Wettbewerbsrecht, 14th edition, intro. to Unfair Competition Act, marginal notes 209 et seq., with further references). Remarks which, according to the witness Leisner, the respondent made several times show that even before sending out the circular the latter had planned to set up his own news agency after he left the employ of the [ddp]. The distribution of the circular referring to the enclosed adverse newspaper reports on, inter alia, the [ddp]’s activities as a news agency to current clients of the [ddp] and/or potential clients of both the [ddp] and the news agency that the respondent proposed to set up was apt to enhance the competitive position of the respondent’s company and impair that of the [ddp]. Admittedly, the respondent’s company did not then exist. However, for it to be held that there is a competitive relationship, it is sufficient that traders have, or at least will in the future have, the same potential clientele. This was the case as regards the respondent’s company and the [ddp] ... Behind the respondent’s conduct there was furthermore a ... competitive intention. Experience shows that the fact that activities are objectively apt to enhance one’s own competitive position at the expense of another’s is not the only basis for presuming a competitive intention ... In the present case such an intention is also apparent from the other facts that emerged during the proceedings. According to what he told the witness Leisner, the respondent had already been planning for a long time to set up his own agency in the event of his leaving the [ddp]’s service. In the middle of July 1984 the [ddp] had removed him from the post of director and in the middle of August [it] had terminated his contract of employment. The circular and newspaper cuttings were sent out about a month later to selected addressees, including - and this is not disputed - important clients of the [ddp]. A few months later the respondent’s new agency was set up. This chronological sequence of events is a further indication of the respondent’s intention to lower the [ddp] in the esteem of potential clients of both parties and thereby make it easier for his own agency to gain a foothold in the market in preparation for competition with the [ddp]. The last paragraph of the circular likewise makes the competitive intention clear. It shows that the respondent intended to provoke discussion not only with a view to correcting assertions concerning himself that were possibly false, but also, at the very least, in order to promote his future activities as a competitor of the [ddp]. It is not apparent what else the respondent could have meant when he wrote that he wished to discuss ‘not only the past but also future developments in the German "news market"‘. By taking up these unfavourable comments on the [ddp] and distributing them anew as his own statements and assessments, he unnecessarily handicapped the [ddp] as a competitor. In this connection it does not matter whether the unfavourable factual statements concerning the [ddp]’s activities were accurate and whether they justified the unfavourable assessments accompanying them. This is because even true statements may only be used to disparage a competitor where the person making them has sufficient reason to link his own competitive position with disparagement of the competitor and provided that the criticism does not in nature or degree exceed what is necessary (Federal Court of Justice in GRUR 1968, pp. 262 and 265 - Fälschung). It does not appear that there was any such reason to disparage the [ddp] by taking up the unfavourable comments on its activities in the Horizont article." In short, Mr Jacubowski had needlessly handicapped (behinderte unnötig) a competitor and accordingly infringed section 1 of the 1909 Act. 18. On 26 November 1987 the Federal Court of Justice declined to accept for adjudication an appeal on points of law (Revision) by the applicant on the ground that it had no prospects of success. 19. Thereupon Mr Jacubowski applied to the Federal Constitutional Court, complaining in particular of an infringement of freedom of expression (Article 5 para. 1, first sentence, of the Basic Law). On 4 October 1988 the Federal Constitutional Court declined to accept the complaint for adjudication on the ground that it was unfounded. It noted, firstly, that the prohibition in issue related solely to the applicant’s chosen method of circulating his information. The information was, moreover, of a business nature, but this did not mean that it ceased to be an opinion whose expression was protected by Article 5 para. 1, first sentence, of the Basic Law. This provision therefore had to be weighed against section 1 of the 1909 Act, on which the prohibition had been founded. The court went on: "In order for it to be determined how [freedom of expression and fair competition] are to be related to each other in the case of damaging comment by a competitor, the following points are decisive, having regard to earlier decisions of the Constitutional Court in cases involving a call for a boycott (see Constitutional Court Decisions [vol.] 62, 230 at 244 et seq., with further references). In the first place, the motives of the person concerned and, linked to them, the aim and purpose of the comment are crucial. If the comment is motivated not by personal interests of an economic nature, but by concern for the political, economic, social or cultural interests of the community, if it serves to influence public opinion, the appeal will probably qualify for the protection of Article 5 para. 1 of the Basic Law, even if private and, more particularly, economic interests are adversely affected as a result. Conversely, the importance of protecting the latter interests is the greater, the less the comment is a contribution to public debate on a major issue of public concern and the more it is immediately directed against those interests in the course of business and in pursuit of a self-serving goal (see Constitutional Court Decisions [vol.] 66, 116 at 139) such as improving one’s own competitive position ... ... In the light of these facts, the distribution of the applicant’s circular can hardly be regarded as an attempt to influence public opinion. Rather it was designed almost exclusively to promote his private business interests and to secure or improve his competitive position in the news market. It follows ... that the prejudice caused to the complainants by the distribution of the circular was disproportionate to the applicant’s aim, stated in it, of clarifying his relationship with the ddp and ‘current developments at the agency’. In principle, freedom of expression takes precedence over rights (Rechtsgüter) protected by ordinary laws in so far as the statement is part of the ongoing discussion of questions of public importance which is absolutely fundamental to a free democratic system. This condition is not satisfied where the statement is made to ensure that certain business interests prevail over others in the context of business competition. The fact that an interest is made to prevail by means which are in principle protected under Article 5 para. 1 of the Basic Law cannot therefore justify subordinating to it the other interest, which is in turn entitled to the protection of an ordinary law that places restrictions on freedom of expression, in this case section 1 of the Unfair Competition Act (see Constitutional Court Decisions [vol.] 62, 230 at 247 et seq.). It follows that the finding by the Court of Appeal that the applicant’s distribution of the circular was contrary to accepted moral standards is not incompatible with Article 5 para. 1 of the Basic Law." The Constitutional Court added that the fact that the impugned circular followed a press release directed against him which had been issued by the ddp (see paragraph 12 above) did not invalidate this conclusion, since in order to claim the protection of the Constitution, his response would have had to be intended to influence public opinion, which it was not. 20. On 30 November 1988 the Düsseldorf Regional Court dismissed a claim for damages brought by the ddp in reliance on the Court of Appeal’s judgment of 11 December 1986 (see paragraph 17 above). It held that the ddp had insufficiently substantiated its claim and had failed to prove any causal link between the alleged damage and the distribution of Mr Jacubowski’s circular.