FREEDOM OF EXPRESSION ONLINE

By Dr. Miljana Todorovic

September 24, 2020

Rising tolerance for foul language 

Over recent decades, society’s tolerance of offensive language has gradually risen. This in part has been driven by social media which has made it possible to recourse to inflammatory, shocking language to attract attention and help posts gain traction. It is not a surprise that consequently, some are willing to risk using profanity in their marketing strategies, to attract a certain audience. Whilst Article 10 of the European Convention of Human Rights (ECHR) guarantees freedom of expression, in practice its exercise may be subject to restrictions prescribed by law and if necessary, imposed for the protection of morals. But how to determine the floating border where the freedom to express ourselves intersects with public morality? In different fields of law, this dilemma shifts from a theoretical towards a real problem. 

Controversial trade mark case

The recent case involving a German producer who wanted to protect a controversial word sign is such a case. The story begins in 2013, when a German comedy movie Fack Ju Göhte, made a huge success. Within a mere 17 days the film was watched by 3 million people in German cinemas, an impressive number that later rose to almost 7.4 million viewers. This intriguing title is a combination of phonetic transcription of an English profanity and a misspelling of the famous German writer Goethe.

Procedural history

This success in the film industry likely motivated the producer, Constantin Film Produktion GmbH, to apply to the European Union Intellectual Property Office (EUIPO) for registration of the word sign Fack Ju Göhte as an EU trade mark on 21. April 2015 . The EUIPO refused the application on basis of Article 7(1)(f) of Council Regulation No. 207/2009, which excludes from registration trade marks that are contrary to public policy or to accepted principles of morality. The Constantin Film Produktion GmbH contested this decision. However, the appeal was rejected at the Fifth Board of Appeal of the EUIPO and subsequently at the General Court. 

Whose moral is protected?

The EUIPO's Boards of Appeal have made a substantial body of decisions concerning the registration of trade mark applications that are contrary to the accepted principles of morality. In order to prevent the registration of trademarks that are contrary to the ethical and moral principles recognised by a Member State and throughout the EU, the Boards have concluded that the most reliable assessment, in the absence of particular surveys, is provided by the historical background, the national offices’ guidelines and the case-law of Member States. Furthermore, the concept of morality in Article 7(1)(f) is not concerned with bad taste or the protection of individuals’ feelings. A trade mark must be perceived as against public morality by the relevant public, or at least a significant part of it, and as going directly against the basic moral norms of society. The ‘relevant public’ is not confined to the consumers of the goods and services covered by the mark, since a broader public than just the targeted consumers may encounter the mark.

The overruling of the CJEU

However, in April 2018 the appellant commenced proceedings  in front of the Court of Justice of the European Union (CJEU, Case C-240/18 P). The producer asserted, inter alia, that the word sign Fack ju Göhte is perceived not as profanity, but “as a joke, the students’ occasional frustration with school and uses, for this purpose, a selection of words taken from teenage slang”. On 27 February 2020 the applicant finally received a positive decision.. The CJEU found that the General Court erred in its interpretation and application of Art. 7(1)(f). It set aside the General Courts judgment and annulled the decision of the EUIPO to refuse the registration of Fack Ju Göhte as a trade mark. What was the reasoning of the CJEU? The concept of ‘accepted principles of morality’ is not defined by Regulation No. 207/2009, so it had to be interpreted. As AG Bobek has emphasised, values and norms should be determined according to the social consensus prevailing in a particular society at the time of the assessment. In making that determination, due account is to be taken of the social context, including, where appropriate, the cultural, religious or philosophical diversities that characterize it.

The overruling of the decision by the CJEU demonstrates that although volatile concepts, like morality, are escaping precise definition, there is a need to clarify the applicable legal test for assessing eventual intrusion on public morals. Only that way the freedom of expression can be protected from unnecessary restrictions.