Case Law, Strasbourg: Firma EDV für Sie v Germany, Article 8, companies and the right to reputation – Hugh Tomlinson QC

The decision in Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v Germany (App No, 32783/08, 2 September 2014) involved a consideration of the interesting question as to whether a company has a right to reputation under Article 8.  The Fifth Section of the Court proceeded on the basis that a company did have such rights. The application was, however, found to be inadmissible on the basis that a fair balance had been struck between Articles 8 and 10 by the domestic court.

Background

The applicant company was a software enterprise that provided customer service for a database widely used by German medical practitioners.  In an article in a medical journal it was suggested that the applicant was closely connected to a religious community called Universelles Leben (“Universal Life”). A representative of the Bavarian Protestant‑Lutheran Church issued a press release entitled “Security Leak in Software for Medical Practices – Patient Data Accessible to Psycho-Sect Universelles Leben”. He warned of the “at least conceivable danger” that the applicant company might abuse its access to patient data and use it for the purposes of the religious community Universelles Leben.

The issue was subsequently taken up in the press, which repeated the fear expressed in the press release as regards the possibility of a security leak.   The company that had licensed the applicant company to distribute and provide customer service for its software terminated their contract, citing the critical press. Having thereby lost its main source of income, the applicant company discontinued its business.

The applicant commenced proceedings in the domestic courts.  On 9 May 2001 the Munich Regional Court rejected its claim for damages and a cease-and-desist order.  It held that neither the applicant company’s personality rights nor its rights concerning its business had been violated by the Bavarian Protestant-Lutheran Church’s representative.

The applicant company invoked Articles 8 and 9 of the Convention and Article 1 of Protocol No. 1, complaining that by exposing the religious affiliation of its employees and management, and questioning their reliability on those grounds, the Bavarian Protestant-Lutheran Church had tarnished the applicant’s reputation and ruined its economic foundation.

Judgment

The Court began by considering whether the Article 8 right to reputation applied to a company. It recalled that

“the private-life aspect of Article 8 of the Convention encompasses a natural person’s reputation (see Axel Springer AG v. Germany [GC], no. 39954/08, § 82, 7 February 2012). Regarding legal persons, the Court has consistently held that a legal person’s business premises (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005‑IV with further references, and Niemietz v. Germany, 16 December 1992, §§ 29-31, Series A no. 251‑B) and its correspondence (see Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43-45, ECHR 2007‑IV) fall under the ambit of Article 8. The Court has further held that the protection of a company’s reputation may be the legitimate aim of a restriction under Article 10 § 2 of the Convention (see Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts), and Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005‑II). [21]

It went on to say that in a case in which

“a fair balance has to be struck between the conflicting rights of the applicant company and freedom of expression, the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of the offending article or under Article 8 of the Convention by the person who was the subject of that article” [22]

As a result, it decided that for the purposes of the application it could

“leave open the question whether the reputation of a company falls under the notion of private life under Article 8 § 1. Having regard to the foregoing principles, it will start on the assumption that Article 8 applies” [23].

In relation to the substance of the application, it concerned the alleged inadequacy of the protection afforded by the domestic courts to the applicant company’s reputation.  The Court had to consider whether a fair balance has been struck between the applicant company’s right to respect for its private life and the right of the Bavarian Protestant-Lutheran Church to freedom of expression guaranteed under Article 10 of the Convention.  It therefore considered the criteria set out in the 2012 Grand Chamber decisions of Von Hannover v Germany (No.2) and Axel Springer v Germany.

The impugned statements of a representative of the Bavarian Protestant-Lutheran Church contributed to a debate of public interest, namely on data security in the sensitive area of medical data protection. The statements, in so far as they referred to the access Universelles Leben had to patient data, relied on facts which were, as established by the domestic courts, true. The statement concerning the danger of abuse, by Universelles Leben, of their access to patient data, wae a value judgment which had a sufficient factual based.

As to the description of the applicant company as a “dubious organisation”

“the Court considers that this negative value judgment had a sufficient factual basis in that it referred to a company under the de facto control of another religious community whose unusual views on medical treatment had not been contested in the proceedings before the domestic courts, and was not abusive” [28]

The German courts had considered all those factors and balanced them in a reasonable manner and cannot be held to have overstepped their margin of appreciation as regards Article 8.  As a result, the application was rejected as manifestly ill-founded

Comment

The decision to reject this application was, on the facts, an unsurprising one.  It is, however, noteworthy that the Court was prepared to proceed on the basis that controversial “implied right to reputation” in Article 8 extends to companies.

As has been noted in previous posts (see below) the Court’s case law finding that Article 8 protects the “right to reputation” as an aspect of private life is relatively recent in origin.  It first appeared as recently as 2004 (see Chauvy v France [70]).  The development was a controversial because “reputation” was deliberately left out of Article 8 when the Convention was drafted.

The Article 8 right to reputation has been said on a number of occasions to arise because

“a person’s reputation … formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”” (A v Norway, [64].

This reasoning is difficult to apply directly to companies which are not normally regarded as having rights to “identity” or “integrity”.

Nevertheless, it has long been recognised that companies have Article 10 rights.  It is also clear that companies already have many of the the rights protected by Article 8 – for example rights to respect for the privacy of their premises and correspondence. It is, therefore, perhaps unsurprising that the Court is prepared to take the next step of extending the Article 8 right to reputation to companies.

The artificiality of stretching the notion of “private life” to a non-natural person is justified by the improvement in analytical clarity which results.  The very different characteristics of individuals and companies can doubtless be taken into account when the “balance” is being struck.  The extension of the right would mean that defamation cases brought by both companies and individuals could be considered within the same analytical framework.  As I have pointed out in a previous post (“Privacy and Defamation, Strasbourg blurs the boundaries“) there is a strong argument that this should not be exactly the same framework that is applied in privacy cases.

Hugh Tomlinson QC is a member of Matrix chambers and an editor of Inforrm

For other posts on the Article 8 “right to reputation” see:

• Freedom of Expression and the Right to Reputation: Human Rights in Conflict – Stijn Smet
• “Is there a right to reputation?” Part 1 – Heather Rogers QC
• “Is there a right to reputation?” Part 2 – Heather Rogers QC
• Strasbourg on Privacy and Reputation, Part 1: “A positive obligation- Hugh Tomlinson QC
• Strasbourg on Privacy and Reputation: Part 2 “A right to reputation?” – Hugh Tomlinson QC
• Strasbourg on Privacy and Reputation Part 3: “A balance between reputation and expression?” – Hugh Tomlinson QC