(Oct. 18, 2010) On September 8, 2010, the German Federal Constitutional Court (FCC) issued a decision that balanced freedom of speech against commercial interests. The case involved a multinational dairy-producing company that used, in some of its products, milk from cows that had been fed genetically modified corn. (Bundesverfassungsgericht, Sept. 28, 2010, Docket number 1 BvR 1890/08, http://www.bundesverfassungsgericht.de/entscheidunge
n/rk20100908_1bvr189008.html; Press Release No. 81/2010, Versagung des Anspruchs eines Milchkonzerns auf Unterlassung der öffentlichen Verwendung des Begriffs “Gen-Milch” nicht verfassungswidrig (sept. 22, 2010), http://www.bundesverfassungsgericht.de/pressemitteil
ungen/bvg10-081.html.) The FCC held that the environmental advocacy association Greenpeace could not be judicially restrained from describing such milk as “genetic milk.”
In 2004, Greenpeace requested that the dairy company prevent its suppliers from feeding genetically modified feedstuff to their cows, and when the company refused, Greenpeace referred to the milk as “genetic milk (Gen-Milch)” in various publications, pamphlets, and campaigns. Greenpeace is of the opinion that the governing European regulation on this issue (Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labeling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms, OFFICIAL JOURNAL OF THE EUROPEAN UNION (L268) 24, http://eur-lex.europa.eu/Result.do?T1=V2&T2=2003
&T3=1830&RechType=RECH_naturel&Submit=Search) does not sufficiently protect the German consumer because it does not require a label indicating genetic modification for products made from animals that had been fed genetically modified feedstuff.
The dairy company petitioned for an injunction, arguing that Greenpeace was committing a tort that hurt the company's business by using a slogan that misleadingly implied that the milk itself was genetically modified. The trial court held mostly for the plaintiff, by ordering that the defendant not use the pejorative term “genetic milk” unless an explanation was given simultaneously that the milk itself had not been genetically modified and that scientific examinations did not reveal any residue of the genetically modified plants the cows had eaten. (Landesgericht Köln, May 24, 2006, Docket No. 28 O 358/05.)
The appellate court reversed, holding that a balancing of the constitutional guarantee of freedom of expression (Basic Law, art. 5(1), translation at http://www.gesetze-im-internet.de/englisch_gg/index.
html (last visited Oct. 15, 2010)) of the defendant with the commercial interests of the plaintiff weighed in n favor of the defendant's right of free speech (Oberlandesgericht Köln, Dec. 19, 2006, Docket No. 15 U 110/06). The Federal Court of Justice, as the last appellate instance, upheld the decision of the appellate court (Bundesgerichtshof, Mar. 3, 2008, Docket No. VI ZR 7/07).
The unsuccessful plaintiff lodged a complaint with the FCC, alleging a violation of his constitutional rights of property and the exercise of a gainful occupation (GG, arts. 14 & 12). In a reasoned opinion, the FCC rejected the complaint by reiterating essentially the reasoning of the Federal Court of Justice. The FCC held, in particular, that the term “genetic milk” was not specific enough to ascribe any particular meaning to it and that polemic slogans are protected free speech.