During an electoral campaign for the position of mayor of Amöneburg in May of 2005, Mr. Ulrich Brosa handed out leaflets urging people not to vote for F.G., the leading candidate for the position, who also held a position on the local council at that time. The leaflets pointed out the fact that F.G. stays in close relationship with the neo-Nazi movement and advocates for their activities. He also pointed to an answer given by F.G. in an article Mr. Brosa had written, where F.G. denied his association with any far-right groups.
Following F.G.'s legal action against Mr. Brosa, a local court banned further distribution of the leaflets and any other form of implying that he's a supporter of a neo-Nazi group. In August of 2005 the court reached a verdict holding that Mr. Brosa did in fact violate F.G.'s personal interests. Moreover, Mr. Brosa did not provide sufficient evidence to prove his point. He was therefore excluded from claiming his right to freedom of speech on the matter.
Mr. Brosa then turned to the European Court of Human Rights, complaining of a violation of Article 10 of the Convention (freedom of speech), which occurred when he was banned from publishing and distributing information on one of the candidates in the local election (F.G.) during the electoral campaign.
The ECtHR, applying a three-grade proportionality test, came to the conclusion that banning the spreading of information regarding F.G. did constitute a breach of freedom of speech. The Court did agree, however, that the aim of the breach - to protect the reputation of a candidate - was justified.
Regarding the question of if it was necessary to constrict freedom of speech in a democratic state, such as Germany, the judges held that Mr. Brosa, by handing out his leaflets, had contributed to a public debate on the political affiliations of the person in question. Moreover, the leaflets dealt with a person holding public office, being both a councilor and a candidate in the local elections. Such people, according to the ECtHR, can face more criticism than other people, which could include leaflets that were handed out during the campaign, aimed at informing the citizens of Amöneburg on the leading candidate.
The Court disagreed with the German judges on the issue of whether Mr. Brosa's leaflets presented certain facts rather than opinions. The neo-Nazi organization that was brought into question by the leaflets is under constant control by German police because of its activities, and besides that, there is ongoing public debate about it. The term "neo-Nazi" used by the author is broad enough to be understood differently, based on recipients' personal experience. It's an expression of opinion, which ought to never need to be proven before a court. The German courts were wrong to demand that Mr. Brosa provide proof for his statement. The Court applied similar reasoning to the statement that the politician "protects" the organization's members, which was a claim made in the leaflets. That should also be qualified as an opinion, which is based on facts - specifically a letter written by F.G. as a reply to Mr. Brosa's article.
The Court agreed that pre-electoral debate requires special protection, as do voices uttered during it. The German courts that gave priority to protecting the reputation of F.G. did violate Article 10 of the Convention.
