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2 German L.J. [1] (2001)

handle is hein.journals/germlajo2 and id is 1 raw text is: Federal Constitutional Court Rejects Ban on Benetton Shock Ads: Free Expression, Fair Competition and the Opaque Boundaries Between Political Message and Social Moral Standards. By Peer Zumbansen Suggested Citation: Peer Zumbansen, Federal Constitutional Court Rejects Ban on Benetton Shock Ads: Free Expression, Fair Competition and the Opaque Boundaries Between Political Message and Social Moral Standards., 2 German Law Journal (2001), available at http://www.germanlawjournal.com/index.php?pagelD=11 &artlD=14 [1] On December 12, 2000, the Federal Constitutional Court (FCC) issued its judgment concerning the controversial shock advertising campaign of the Italian fashion designer and retailer United Colors of Benetton. (1) Momentaufnahme reported on the oral arguments before the FCC. (No. 3/2000 - Nov. 15, 2000). The Second Senate of the FCC found the 1995 decisions of the Federal Court of Justice (FCJ), which upheld bans on the Benetton advertisements, to be unconstitutional because the bans constituted an infringement of the constitutionally protected right to freely express one's opinion. The Benetton marketing campaign used large format photography depicting provocative issues, including: a duck smothered in oil, apparently from an oil-spill; children being exploited as laborers in a third-world factory; and a naked buttock bearing the stamp H.I.V. Positive. Publication of the Benetton advertisements had been challenged as unfair competition by a leading consumer protection group (Zentrale zur Bekampfung unlauteren Wettbewerbs e.V., Bad Homburg). [2] The FCJ held, in its 1995 decision regarding the duck and child laborers, that a corporation was allowed to use strong imagery to create associations with controversial issues for the purpose of marketing the firm's goods, even if the imagery/issue lacked a connection to the firm's goods or services. For the FCJ, neither the tastelessness nor the shock-effect of an advertisement would, by itself, constitute a significant violation of fair competition. The FCJ reasoned that with these marketing devices a firm could engage in raising awareness of issues. The FCJ stated clearly that, when reviewing an advertisement on fair competition grounds, a court could not apply a mere aesthetic test. For the FCJ, it was clear that a company, just like any other private party, holds the right to express its opinions or to provide information concerning the reality of issues. The FCJ conceded a company's right to take a stand, but the Court took the quality of the firm's issue-based advertisements to be the standard by which an advertisement's compliance with fair competition should be determined. The FCJ held that an advertisement that aimed exclusively at the viewers' emotions without adding to the debate over the issue invoked by the advertisement, would have to be prohibited as being outside the confines of fair competition. The FCJ found that the images of an oil-smothered duck and child laborers from the Benetton campaign crossed this threshold and that a ban on these advertisements was justified. [3] Regarding the advertisement featuring the image of a buttock bearing the stamp H.I.V. Positive, the FCJ found that the image violated the constitutionally protected right to human dignity (Art. 1.1 German Basic Law). According to the reasoning of the FCJ, victims of the AIDS virus confronted by the Benetton advertisement would suffer a violation of their human dignity because the stamp H.I.V. Positive signified the social labeling and exclusion of AIDS-victims. The FCJ concluded that the image could communicate (and reinforce) this harmful marginalizing message to non- AIDS victims as well. The FCJ concluded that violations of human dignity in advertising constituted a violation of fair competition, especially bearing in mind the objective of protecting younger viewers from the a message that reinforces marginalisation of AIDS victims. [4] The case before the FCC required it to balance the competing principles of a fundamental right to freely express one's opinion (especially as a free press right) and the public's more opaque and flexible interest in fair competition. The FCC found the FCJ's ban on the publication of the Benetton advertisements to be a violation of a publisher's right to freely express its opinion as protected in Art. 5.1(1) of the German Basic Law (the constitutional complaint in the Benetton case had been brought by the publisher of Stern Magazine). The FCC concluded that the three photographs are constitutionally protected expressions of opinions. The FCC held that this status does not change merely because Benetton, by displaying its brand name along with the photo, employs the images for commercial purposes as image-advertisement. Even if some viewers may have had the impression that the advertisement was exclusively or at least primarily aimed at promoting the firm's goods, this can hardly be taken as the only possible understanding of the advertisements. The Court noted that the experience with the advertisements had actually been to the contrary. The advertisements had been largely understood to be statements of Benetton's position on the respective issues. [5] The FCC explained that Section 1 of the German Law against Unfair Competition (Gesetz gegen den Unlauteren Wettbewerb - UWG), upon which the FCJ based its 1995 decisions, is considerably vague in its wording. The FCC, however, found that the statute passes constitutional review as to its applicability to a stupendously wide array of possible fair trade issues. The FCC in its Benetton decision, therefore, invited no challenge to the continued application of the UWG.

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