January 20, 2014 8:10am PT by Eriq Gardner
European Court Won't Lift Ban on Monkey Abuse Film
The difference between the United States and Europe in regards to free expression might be summed up by the asymmetrical treatment afforded late last week to a Hulk Hogan sex tape and video footage of lab monkeys.
Whereas a Florida appeals court determined that a video of Hogan having sex was a matter of public concern and to stop dissemination, a prior restraint under the First Amendment, the European Court of Human Rights refused to be as generous to films claiming animal cruelty.
In 2003, an undercover journalist produced 40 hours of hidden video working at Covance, a multinational biopharmaceutical corporation. Later, the videos were shown on German television in the films, Animal Experiments for Profit and Poisoning for Profit.
Thereafter, Covance went to court to get an injunction on grounds the videos violated the company's "personality rights," as the footage was produced without that company's consent within its private premises. In 2004, a regional court in Germany agreed that an injunction should be granted.
On Thursday, the European Court of Human Rights confirmed it wouldn't lift the injunction.
What happened in the intervening decade was that British animal rights groups had lodged criminal complaints against Covance for violations of the Animal Protection Act. But German prosecutors discontinued investigation for lack of proof. A lack of respect towards animals wasn't necessarily animal cruelty in the eyes of the law.
Covance continued to pursue those who were distributing the video -- including two internet providers -- and the German court's grant of injunction made its way up on appeal.
Those fighting the injunction argued it interfered with their right to freedom of expression, that the film didn't violate the company's rights, and that even if it did, the constitutionally proclaimed right to animal protection outweighed the company's personality rights.
In turn, the German government defended the country's court rulings. Yes, there was interference to free speech, admitted the Germans, but that was justified because the footage had been obtained unlawfully, that the injunction was necessary to protect the company's personality rights, and that to allow the video to be disseminated could incite further criminal acts from animal rights activists.
In affirming the injunction, the European Court of Human Rights says it is "satisfied that the interference" to free expression "pursued the legitimate aim of protecting the C. company's reputation and thus 'the reputation or rights of others.'"
The Human Right Court is also swayed by the notion that there are "rules" for the intellectual battle of ideas.
According to the ruling, "The Court notes that the Hamm Court of Appeal considered it necessary to impose a further-reaching prohibition in the instant case because it considered that the applicant association … had disrespected the 'rules of intellectual battle of ideas' by having employed unfair means when militating against the C. company’s activities and that they could be expected to continue to do so if allowed to make further use of the footage."
Contrast that to the Hogan case,where the former professional wrestler is pursuing Gawker for $100 million for allegedly violating his publicity and privacy rights. On Friday, an appeals court reviewed a Florida judge's grant of an injunction.
The appellate judges wrote, "It appears that the circuit court may have been convinced by Mr. Bollea's argument that the speech at issue is not entitled to First Amendment protection because the Sex Tape was created in violation of the law. However, there is no dispute that Gawker Media was not responsible for the creation of the Sex Tape. Nor has Mr. Bollea alleged that Gawker Media otherwise obtained it unlawfully. The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully."
If this was Europe, the same standard might not apply. The practical effects of the Human Rights Court's refusal to overturn the injunction, though, is unclear. It took us less than a minute to locate a copy of Poisoning for Profit on YouTube.