Benetton decisions
| Benetton I / Benetton II | ||||||
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| Negotiated November 8, 2000 / --- | ||||||
| Delivered November 8, 2000 / March 11, 2003 | ||||||
| File numbers: 1 BvR 1762/95 & 1 BvR 1787/95 and 1 BvR 426/02 | ||||||
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| facts | ||||||
| Constitutional complaint by a publisher against the ban on publishing advertising image advertisements for reasons of competition | ||||||
| tenor | ||||||
| 1. Human dignity is absolute and cannot be weighed against any individual fundamental right. Overall, the fundamental rights are concretizations of the principle of human dignity. Therefore, the assumption that the use of a fundamental right violates inviolable human dignity always requires careful justification. 2. The publication of a foreign expression of opinion - be it also commercial or purely commercial advertising - falls under the protection of the freedom of the press. |
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| Applied Law | ||||||
| § 1 UWG , Art. 1 and 5 GG | ||||||
| reaction | ||||||
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Benetton I: Referral back to the Federal Court of Justice, whose renewed negative decision led to Benetton II. |
The Benetton decisions (also known under the names Benetton I and II or shock advertising or HIV-Positive I and HIV-Positive II ) are a series of decisions of the German Federal Constitutional Court that lifted advertising bans in favor of freedom of the press and freedom of expression .
The Central Office for Combating Unfair Competition e. From the beginning of the 1990s, through several instances up to and including the Federal Court of Justice , V. had repeatedly obtained a ban on the printing of controversial advertisements by the Italian fashion company Benetton in a German magazine. In the Benetton decisions, the Federal Constitutional Court called on by Zeitschriften-Verlag orders every basic right as a concretization of human dignity and sets special requirements for its restriction, if it should be allowed to take place with reference to human dignity. Nonetheless, it continues to develop its established case law, according to which freedom of expression plays a special role under democratic aspects and this fundamental right must therefore be protected particularly intensively.
facts
With constitutional complaints , the publisher of the magazine stern appealed against the judicial ban on printing and distributing advertisements for the Benetton Group . In detail, these are full-page motifs
- oil polluted bird
- Child labor
- naked human buttocks with the stamp "HIV-positive"
each as large-scale images with a bare green logo “UNITED COLORS OF BENETTON”.
After the publishing house was transferred from the Central Office for Combating Unfair Competition in 1994 . V. - which was in turn appealed against Benetton since 1992 - has been warned and asked to refrain from publishing the Benetton advertising, the Stern-Verlag, however, refused, the competent enacted civil court in 1995 at the request of the central one Prohibition of all three motives and threatened a fine of 500,000 DM in the event of a violation . The publisher challenged the ban with a leap revision . The Federal Court of Justice (BGH) rejected this, however, and stated: " Anyone who exploits feelings of compassion for commercial purposes as intensively as in the complained about is acting anti-competitive. "
The Benetton campaign, which was also supported by other publishers and the media, was widely discussed before and during the legal dispute.
The Benetton I decision
The Federal Constitutional Court called upon by Stern-Verlag Gruner + Jahr overturned the judgments of the civil courts in 2000 because they violated the publisher's freedom of the press. This is based on the following considerations:
- The publication of a foreign expression of opinion also falls under the protection of the freedom of the press. Nothing changes here if it is done commercially or purely for commercial purposes. This also includes meaningful images.
- A press organ may not be prohibited from publishing a foreign expression of opinion if the opinion holder is allowed to express and disseminate it himself.
- However, the court does not follow the publisher's argument that Section 1 of the UWG , on which the BGH based its prohibition, is not sufficiently specific or is not amenable to application in cases of the present type from the outset.
- The general clause contained in § 1 UWG, according to which competitive acts that offend morality are prohibited, is constitutionally unobjectionable.
- However, in its assessment of the advertisements under competition law, the BGH failed to recognize the importance and scope of freedom of expression.
- A restriction of freedom of expression requires justification through important public interest or third party rights. The BGH has neither established such, nor are they otherwise evident:
- The Benetton advertisements are judged to be immoral, because depicting the grave suffering of humans and animals arouses feelings of pity and this feeling would be exploited for competition purposes without any objective reason. Such competitive behavior is actually likely to be rejected by large parts of the population. Confronting the viewer with unpleasant or pathetic images is not such an intense nuisance that it could justify the effect that restricts fundamental rights.
- Such annoyance cannot be derived from the fact that there is no connection between the suggestive images and the advertised products. This lack of connection characterizes a large part of today's image advertising - even if traditionally with images that z. B. appeal to libidinal desires or longings. The fact that consumers may be more used to such “positive” images is not decisive for a restriction of fundamental rights.
- Public interests are also not affected. Advertising that denounces inhuman conditions and environmental pollution does not encourage brutalizing or dulling tendencies in our society.
- On the other hand, the ban seriously interferes with freedom of expression. It does not matter whether the Benetton advertisements do not contribute anything to the dispute about the grievances they have identified. The mere denunciation of a grievance is also protected by Article 5 (1) of the Basic Law .
- The BGH considered the motive “HIV-positive” to be anti-competitive because this report grossly violates the principles of preserving human dignity by portraying infected and sick people as being labeled and thus excluded from human society. However, it is by no means certain that the advertisement is to be understood in this sense. At least as obvious is an interpretation according to which the notification should accusingly refer to the feared or ongoing exclusion of infected people. The BGH should therefore have dealt with the various possible interpretations and given reasons for the solution found in order to do justice to Article 5 (1) of the Basic Law.
The Benetton II decision
According to the tenor of Benetton I , the matter was referred back to the BGH. Because the Constitutional Court, as a special court, can not make a substantive decision on the extraordinary legal remedy of the constitutional complaint , but only examines the decisions of other organs for the violation of constitutional law (→ Heck's formula ).
New appeal decision by the BGH
The BGH had to decide again on the ban and in 2001 it again banned the publication of the "HIV-positive" advertisements. In the proceedings in which there were other reports of “child labor” and “oil-polluted duck”, the First Civil Senate lifted the ban and dismissed the lawsuit against the publisher with a so-called waiver , after the above-mentioned headquarters responded to it by the regional court waived the award.
The BGH nevertheless believes that it can restrict the publisher's freedom of the press and refers to human dignity. In his opinion, the public should be shown the stigmatization of HIV-infected people as a social grievance. This socially critical expression of opinion also pursues a selfish advertising purpose, which is why it is immoral ( § 1 UWG). Such a purpose automatically violates human dignity. Advertising that exploits the misery of those affected as a stimulus for its own commercial advantage is incompatible with Article 1, Paragraph 1 of the Basic Law.
New constitutional complaint and decision of the constitutional court
The constitutional court also lifted this ban in March 2003 after a new constitutional complaint by the publisher and referred the matter back to the BGH. The decision is based on the following considerations:
- The second prohibition is also not constitutionally justified as a restriction. The BGH fails to recognize the importance and scope of freedom of expression, which the publisher can invoke within the scope of its freedom of the press. Restrictions on the fundamental right to freedom of expression require justification through particularly weighty public interest or legitimate rights and interests of third parties. Prohibitions based on § 1 UWG presuppose a sufficiently important issue protected by this standard. Human dignity sets an absolute limit to freedom of expression, including in competition law. But this is not violated here.
- The decisive factor is the systematic connection between human dignity and fundamental rights:
- Human dignity is absolute and cannot be weighed against any individual fundamental right. Overall, the fundamental rights are concretizations of the principle of human dignity. Therefore, the assumption that the use of a fundamental right violates inviolable human dignity always requires careful justification, especially since in this case the otherwise necessary justification for encroaching on freedom of expression by a sufficiently important issue protected by competition law is no longer necessary.
- According to this standard, the advertisement does not violate human dignity. The advertising purpose does not transform it into a message that lacks the required respect, for example by mocking, mocking or humiliating the person concerned or by playing down the suffering represented, advocating it or placing it in a ridiculous or macabre context. The purpose of attracting attention alone does not justify the serious allegation of a violation of human dignity.
- An advertising ban on the basis of § 1 UWG is justified - without endangering performance competition - by protecting human dignity if the content of the advertising hits the absolute limit of human dignity. If this limit is observed, the advertising context alone cannot lead to an otherwise permissible expression of opinion violating human dignity. In such a case, a report may be perceived as strange or considered improper, but there is no violation of Article 1, Paragraph 1 of the Basic Law.
In May 2003, the Central Office for Combating Unfair Competition withdrew the action in response to the judgment of the Federal Constitutional Court. The more than nine-year legal battle was over.
swell
- ↑ Competition headquarters: the number of cases processed rose by almost 10% in 1992 to 16,508 , textilwirtschaft.de, May 19, 1993
- ↑ Benetton: The Italian textile manufacturer started a new, provocative advertising campaign ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , textilwirtschaft.de, February 24, 1994
- ↑ Scandal advertising: Look! Here! There! - Dispute over Benetton , spiegel.de, September 15, 2009
- ↑ cf. Judgments of July 6, 1995, Gz: I ZR 180/94 and I ZR 110/93, reference: BGHZ 130, 196
- ↑ Benetton - Federal Court of Justice: "Anti-competitive" ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , textilwirtschaft.de, July 13, 1995
- ↑ Not immoral - Benetton: Advertising ban lifted , textilwirtschaft.de, December 21, 2000
- ↑ the Constitutional Court is not a super-revision instance, for example Schlaich / Korioth, para. 283
- ^ Court judgment - Benetton campaign immoral , spiegel.de, December 6, 2001
- ↑ Waiver judgment of December 6, 2001, Gz: I ZR 283/00 (PDF; 27 kB)
- ↑ Judgment of December 6, 2001 (PDF; 207 kB)
- ↑ BVerfG, 1 BvR 426/02 of March 11, 2003, paragraph no. (1 - 29) , bundesverfassungsgericht.de, March 11, 2003
- ^ Constitutional judges overturn judgment on shock advertising again , handelsblatt.com, April 2, 2003
- ↑ The Constitutional Court allows Benetton shock advertising , textilwirtschaft.de, March 25, 2003
- ↑ Long-standing legal dispute over Benetton advertising ended - Competition headquarters withdraws lawsuit against Benetton advertising in stern ( Memento from September 12, 2009 in the Internet Archive ), stern.de, May 9, 2003
