Not in Germany, said the German courts. And the European Court of Human Rights agreed.
In 2004, the animal rights movement People for the Ethical Treatment of Animals (PETA) planned to launch in Germany a poster campaign entitled ‘The Holocaust on your Plate’. The campaign, previously shown in other countries, featured pictures of animals kept in mass production juxtaposed with pictures of inmates in the second world war concentration camps. It included the heading ‘where animals are concerned, everybody becomes a Nazi’. (If you want to see photographs of the posters, click here).
A civil injunction preventing the posters from being published both in public and on the internet was requested by the president and two vice presidents of the German Central Jewish Council, who had either been in concentration camps as children or lost family members there. The plaintiffs argued that the campaign violated their human dignity as well as the personality rights of the family members that one of them had lost. As such, they contested that images of people in concentration camps could be used for an animal rights campaign that uses these pictures to draw parallels between concentration camps and animals kept in mass production. The German courts granted an injunction preventing PETA from publishing the campaign. The courts recognized that the campaign did not seek to debase Holocaust victims, but rather to draw attention to the conditions of life of animals in mass production. Howeber, the campaign depicted people in concentration camps and animals in a similar fashion, putting them on the same level. This, the German judges argued, violated the image of the human being and the value of human dignity that is protected in the German Constitution.
In a decision on 8 November 2012, the European Court of Human Rights found an interference with PETA’s right to freedom of expression under Article 10 of the European Convention of Human Rights but argued that such an infringement could be justified as it had a legal basis and pursued a legitimate interest, namely the protection of the plaintiffs’ ‘personality rights’. In assessing whether this interference was necessary in a democratic society, one of the criteria the Strasbourg Court uses so as to assess whether an interference with a Convention right is justified, the judges argued that when examining the campaign’s reference to the Holocaust, special attention needed to be paid to Germany’s past: ‘the facts of this case cannot be detached from the historical and social context in which the expression of opinion takes place (…) reference to the Holocaust must also be seen in the specific context of the German past (…) and respects the Government’s stance that they deem themselves under a special obligation towards the Jews living in Germany (…). In the light of this, the Court considers that the domestic courts gave relevant and sufficient reasons for granting the civil injunction against the publication of the posters. This is not called into question by the fact that courts in other jurisdictions might address similar issues in a different way (…). The Court also observed that ‘the applicant has not established that it did not have other means at their disposal of drawing public attention to the issue of animal protection.’
The Court’s judgment was unanimous and all judges found that the interference with PETA’s Article 10 right to freedom of expression could be justified in this case. PETA announced that it planned to appeal the judgment.
– Michele Finck