Court/Judicial body: Court of Justice of the European Communities (Third Chamber)
Date: February 14, 2008 CRC
Provisions:Preamble Article 13: Freedom of Expression Article 17: Access to Appropriate Information
Other international provisions:European Convention on Human Rights: Article 10 (Freedom of expression)
Domestic provisions: German Law on the Protection of Young Persons (Jugendschutzgesetz) (¶ 12(3)(2))
Background:A German company (Dynamic Medien) sued another German company (Avides) to prohibit it from selling to the general public DVDs of Japanese “Anime” cartoons that had been approved for children 15 years of age and older in the United Kingdom, but not yet rated as appropriate for children by a German authority.
Issue and resolution:Freedom of information; protection of health and morals. The Court agreed that unrated DVDs could not be sold to the German public, and held that European law did not prevent Germany from being able to demand that all video materials on sale within the country be rated and given age limits in line with national standards.
Court reasoning:Germany’s requirement that media materials be examined and rated before going on sale to the German public is fair because it requires all media, whether German or not, to undergo this process. The Court also found Germany’s rating system to be reasonable, noting in particular that it was designed to protect young people from materials that might be harmful to the psychological or physical development of children. While noting that children generally have a right to freedom of information under CRC articles 13 and 17, the Court found that the German law fell within the exception to these rights in seeking to protect children from information that would be detrimental to their well-being.
Excerpt citing CRC and other relevant human rights 85. … there is manifestly no substance to [the] … argument that the signature and ratification of the Convention on the Rights of the Child by both Germany and the United Kingdom mean that the criteria for the examination and classification of image storage media by the competent authorities of the two States are equivalent…. [T]he Convention lays down no common standard for the protection of young persons with regard to the content of image storage media and other media products. Article 17(e) of the Convention provides only that the States Parties shall “encourage the development of appropriate guidelines for the protection of the child from information and material [from the mass media] injurious to his or her well-being.” … 88. Nor can the need to interpret and apply the provisions of the EC Treaty on the freedom of movement of goods in the light of Art. 13 of the Convention on the Rights of the Child, which enshrines the right of the child to freedom of expression, be relied upon to infer that the German rules in question are incompatible with those provisions, as Avides argued at the hearing. Under Art.13(1) , that right “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.” 90. … the Convention on the Rights of the Child is binding on each of the Member States and is one of the international instruments for the protection of fundamental rights of which it takes account in applying the general principles of Community law. 91. In addition, as the Commission has stated, it must be remembered that freedom of expression, including inter alia the “freedom to … receive … information and ideas without interference by public authority and regardless of frontiers” is also enshrined in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), on which the Court, as is widely known, draws in guaranteeing respect for fundamental rights. 92. Art. 13(2) of the Convention on the Rights of the Child concedes that exercise of the right to freedom of expression may be made subject by law to such limitations as are necessary, in particular, “for the protection of national security or of public order (ordre public), or of public health or morals,” while Art. 17(e) of the Convention … obliges the States Parties to encourage “the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.” 93. … it is clear from the very wording of Art. 10(2) of the ECHR that freedom of expression is subject to certain limitations justified by objectives in the public interest, insofar as those derogations are prescribed by law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. These objectives in the public interest specifically mentioned in Art. 10(2) of the ECHR include, in particular, “prevention of disorder or crime” and “the protection of health or morals.”
Notes: For more information on children’s right to freedom of expression and access to information, including a selection of case law, please see CRIN’s campaign ‘Protect children, end censorship’.
CRIN comments:CRIN believes that this decision is consistent with the CRC in that it recognises the strong importance of children’s right to information. CRIN believes that this right should be considered in all matters that relate to public rating or censorship systems, and that materials should only be prohibited when they are clearly and universally agreed to be a danger to children’s development, such as child pornography or images depicting extreme violence.
Citation: Case C-244/06, Dynamic Medien Vertriebs GmbH v Avides Media AG, 2 C.M.L.R. 23 (2008).
Link to full judgement: http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=c-244/0…