EGMR: Forthcoming judgment on Tuesday 9 January 2018 – GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland (no. 18597/13)

The applicant, GRA Stiftung gegen Rassismus und Antisemitismus (the GRA Foundation against Racism and Anti-Semitism), is a non-governmental organisation which is registered in Switzerland. It promotes tolerance and condemns racially motivated discrimination. The case concerns the organisation’s complaint about a court finding of defamation against it. In November 2009 it reported on a meeting held in the town of Frauenfeld by the youth wing of the Swiss People’s Party, which was held in the run up to a referendum on banning the building of minarets.

After the meeting, the applicant organisation posted an entry on its website in a section called “Chronology – Verbal racism”. It cited the party’s own report of a speech at the meeting by B.K., the head of the local youth branch of the Swiss People’s Party. He was quoted as saying that it was time to stop the expansion of Islam, that “the Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures”, and that the prohibition of minarets would be an expression of the preservation of national identity. The minaret ban was approved in the referendum the same month, leading to a constitutional amendment to implement the result.

In August 2010 B.K. took GRA Stiftung to court over the entry on its website by filing a claim for protection of his personality rights. He applied for an order that the organisation had to withdraw the entry and that it be replaced with the court’s judgment. The organisation argued that the entry was a value judgment which could only infringe personality rights if it was unnecessarily hurtful and insulting.

The district court dismissed B.K.’s claim in March 2011 on the grounds that the Internet article had been justified as it had related to a political discussion about a matter of public interest. The judgment was reversed on appeal in November of the same year as the appellate court held that the words “verbal racism” were a mixed value judgment, which could infringe personality rights if based on untruths. It found that B.K.’s speech had not been racist and ordered the organisation to remove the article and replace it with the court’s judgment. GRA Stiftung appealed to the Federal Supreme Court, arguing that any interference with B.K.’s personality rights had been justified. One of the organisation’s main aims was to inform the public about racist behaviour. To fulfil its role of watchdog it published articles and interviews concerning current events relating to racism and anti- Semitism.

The Federal Supreme Court dismissed the organisation’s appeal in August 2012. It found that B.K.’s comments could not be described as verbally racist and that the mixed value judgment which had infringed his personality rights had not been justified by any overriding interest. Even B.K.’s involvement in a political debate, which meant he had to accept a reduced level of protection for personality rights, did not justify disseminating untruths or publishing value judgments that were not based on facts.

Relying on Article 10 (freedom of expression), the applicant organisation complains about the domestic court’s finding of an infringement of B.K.’s personality rights. It argues, among other things, that the Federal Supreme Court was wrong to find that the expression “verbal racism” was a mixed value judgment which required proof.

Press realease ECHR 001 (2018) 05/01/2017