German constitutional court allows `shock advertising'

German constitutional court allows `shock advertising'
REUTERS

KARLSRUHE, DEC 13: The German Constitutional Court in Karlsruhe ruled on Tuesday that banning "shock advertisments" by clothing manufacturer Benetton violates the right to free speech and the freedom of the press.

According to the Karlsruhe judgement, the German Federal High Court of Justice (BGH), in an earlier decision, had misjudged the scope of the right to free speech and freedom of the press.

Tuesday's decision said the fact that members of the public had been confronted with uncomfortable and upsetting images of reality was not enough to justify a ban. The state has no right to restrict basic rights simply in order to protect people from being confronted with the misery there is in the world, said Constitutional Court Vice-President Hans-Juergen Papier as he explained the court's decision.

The situation could well be different for images which disgust, cause fear or harm children. Three of the company's advertisements - featuring an oil-drenched bird, child workers in the Third World, and a human rear stamped with the phrase "HIV positive" - were banned by the BGH in 1995 for violating accepted social standards.

The court said that Benetton was stirring up feelings of compassion and helplessness in order to commercially exploit them. The judgement at the time said that the advertisement with the HIV-stamped rear also stripped HIV-positive people of their dignity. The Karlsruhe judgement said that appealing to consumers' emotions and the lack of a direct connection between the advertisement and the product is common, however.

The decision made reference to advertising which conjured up ideas of freedom or independence and those which promised the sheen of celebrity. The court said the fact that consumers have become "inured" to such images but not to an appeal to their much less worn-out sense of sympathy did not justify restricting freedom of speech.

The Constitutional Court also cast doubt upon the BGH's interpretation of the photograph of the human rear stamped with the phrase "HIV-positive". The picture could also be seen as an indictment of the fact that people with AIDS are threatened with exclusion from society. The court, however, did not debate this issue. The case will now be returned to the BGH which will very probably allow the advertisements to be published. The judgement could have consequences for environmentally-friendly products. According to the BGH judgement, advertisements which stress that a product carries the "blue angel" seal of environmental approval should be banned.

The BGH regarded this as advertising which appealed to consumers' emotions and therefore represented unfair competition. A constitutional complaint connected to this matter has already been waiting for several years for a decision - the Consititutional Court announced that it expects a decision to be reached in 2001.