The only people really not allowed to mention the Holocaust
13 November 2012
Peta Deutschland v Germany (No. 43481/09) – read judgment
Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.
In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
The German courts considered this issue under the protection of speech under Article 5 of the Basic law. There was no indication that the applicant association’s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection. The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals.
The Regional Court considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering, as the Basic Law put human dignity in its centre.
This attitude was not reflected in other countries. Earlier in 2004 the applicant association organised an exhibition in Vienna, where the same posters which form the subject matter of the instant proceedings were publicly displayed. A number of Austrian citizens complained, seeking to injunct the exhibition. The Austrian Supreme Court (no. 6 Ob 321/04f) rejected the request. That court expressed its doubts as to whether the plaintiffs were directly affected by the impugned poster campaign. It considered, in any event, that the impugned campaign was justified by the right to freedom of expression. The poster campaign did not debase the depicted concentration camp inmates. Conversely, the applicant association had a legitimate interest in publicly addressing its subject even in a drastic way.
Peta’s arguments before the Court
In its petition to the Strasbourg Court, the applicant association relied heavily on the Austrian Court’s position and pointed out that their poster campaign was in no way intended to debase or insult the persons represented on the posters and did not violate any of the plaintiffs’ rights. It was neither trivialising the suffering, nor did it have any anti-Semitic background. The applicant association pointed out that the posters did not depict the applicants and that it was not even certain that all the persons depicted on the photographs were of Jewish Faith. Many persons of Jewish origin would not consider that such a comparison would violate their personality rights and had even made such comparisons in their own publications or had participated in the original planning of the campaign. Holocaust comparisons were not unlawful and had been widely used in public debate.
As far as the injunctions were concerned, the applicants contended they had no legal basis in German law. The case law quoted by the Government exclusively referred to the denial of the Holocaust, and was thus not applicable in the instant case. The decisions in this respect were devoid of any legal basis and had thus to be considered as being arbitrary. Freedom of expression constituted one of the essential foundations of a democratic society and a special degree of protection was afforded to expressions of opinions which were made in the course of a debate on matters of public interest. The applicant association accepted that accepted that the historical background in Germany made it necessary to apply specific criteria enabling every person of Jewish origin to take steps against anti-Semitic discrimination. However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered a collective insult.However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered collective insult.
The German courts had failed to weigh the competing interests, having particular regard to the fact that the applicant association pursued objectives of the highest ethical and moral standards, as was further supported by the fact that the protection of animal rights was expressly mentioned in Article 20 a of the German Basic Law. Due to sensory overload through commercials and advertisements, the applicant association was dependent on gaining attention for its cause in drastic ways. It thus did not matter that the applicant association would have had other means at its disposal to express its opinion.
The Court rejected these arguments and adopted the approach of the German Regional Court. It accepted that the civil injunctions issued against the applicant association were a proportionate means to protect the plaintiffs’ personality rights and accordingly found no violation of Article 10 of the Convention.
In their partially concurring opinion, Judges Zupanacic and Judge Spielman go even further. They would not allow a comparison of human and animal suffering anywhere, whether or not in Germany or whether or not involving depiction of Jews in concentration camps:
Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law.
In their indignation, the judges in the Strasbourg Court would do well to consider the Nobel prize-winning author, J.M. Coetzee. His long career involved strong criticism of the apartheid regime in his early novels such as Waiting for the Barbarians and The Life and Times of Michael K. The Nobel Prize, following publication of his celebrated novel Disgrace, was awarded in 1993 for “well-crafted composition, pregnant dialogue and analytical brilliance,” while focusing on the moral nature of his work. Coetzee’s alter ego is the eponymous heroine of one of his novels, Elizabeth Novello, but she appears frequently in his other work. Costello is a lecturer on ethics who tours the world lecturing on topics including the lives of animals and censorship. She draws constant parallels between the plight of animals and that of the Holocaust victims. She also compares those who would rather not know about abattoirs and factory farms with the Poles in the vicinity of Treblinka who chose not to think about the ash on the wind.
No-one slapped an injunction on the Nobel Laureate, nor have they done so when in his various lectures and public appearances across the world he takes on the persona of Costello and renders his audience very uncomfortable on the question of our relationship with fellow species.
So how has Peta perpetrated this terrible infraction? Why has the right to “human dignity” – a principle reminding the strong that the weak are also entitled to respect for their integrity – become a basis for censoring any speech that compares our suffering with that of non-human animals? The rights revolutions that brought forth these instruments may have had religious backing in the 18th century, but modern human rights jurisprudence is about curtailing the power of the state, not punishing those who point out the undeniable biological similarity between ourselves and animals; still less is it about slapping down the natural instinct for empathy, hard-wired and established by the neurological observation of our “mirror neurons”. Surely such empathy is at the core of the modern concept of human dignity, not something that threatens to subvert it.
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