Nix v Germany (European Court of Human Rights, Chamber, Application no. 35285/16, 13 March 2018)
The European Court of Human Rights has rejected an appeal brought by a German citizen who claimed his right to freedom of expression had been impermissibly burdened. The applicant, Mr Hans Burkhard Nix, had published an image of Nazi-era SS chief Heinrich Himmler in SS uniform wearing a swastika armband on his personal blog. He was convicted by a German court under a law which prohibited the use of propaganda material of unconstitutional organisations, including the Nazis.
Mr Nix, a German citizen and resident of Munich, was convicted of a domestic criminal offence in 2015 after he published a blog post featuring an image of Nazi-era SS chief Heinrich Himmler in SS uniform wearing a swastika armband. The blog post was connected to a complaint Mr Nix had in relation to allegedly racially discriminatory treatment his teenage daughter had received from the German Federal Employment Agency (Agency).
The Agency had sent an information request to Mr Nix in relation to his teenage daughter's intentions to complete her schooling. Mr Nix took issue with the request, believing his daughter was being targeted due to her German-Nepalese origin, and subsequently posted a series of six entries on his personal blog about his communication with the Agency, one of which featured an image of Himmler. There had been media reports suggesting that children with a migrant background were discriminated against in schools and by employment offices, being pushed into vocational education and lower-wage jobs. Soon after Mr Nix's blog posts, criminal proceedings were instituted by the Munich prosecution authorities against Mr Nix. Mr Nix was charged with libel, as well as the offence of using symbols of unconstitutional organisations.
Article 86a of the German Criminal Code prohibits the domestic distribution, public use, production, stock, import and export of propaganda material of certain unconstitutional organisations. One of the organisations deemed unconstitutional is the former National Socialist (Nazi) organisation. There are exemptions from prosecution for educational and other purposes. The courts have also interpreted Article 86a so that uses of the symbols which do not contravene the provision’s purpose, including where the opposition to the ideology of the symbol used is obvious and clear, are exempted.
For the Article 86a offence, Mr Nix was sentenced to four months' imprisonment, which was suspended, and subsequently reduced on appeal. He unsuccessfully appealed through the domestic German courts, before lodging an appeal with the European Court of Human Rights. The basis of the appeal was Article 10 of the European Convention on Human Rights, which provides for the right to freedom of expression, subject to formalities, conditions, restrictions or penalties as prescribed by law and necessary in a democratic society. Mr Nix argued that the relevant provisions of the German Criminal Code constituted an interference with freedom of expression that was not necessary in a democratic society.
The Court rejected Mr Nix’s application. Using a proportionality analysis, the Court found that the interference with his freedom of expression was in accordance with the law and proportionate to a legitimate aim and did not contravene Article 10.
The Court noted that the purpose of Article 86a is to prevent the revival of Nazism, maintain political peace, and ban unconstitutional symbols in German political life. It considered this to be a legitimate aim, and found that the interference with Mr Nix’s rights was in accordance with the law.
As to whether the interference was necessary, which required it to be a response to a pressing social need, the Court considered that Germany's decision to criminally sanction the use of Nazi symbols must be seen in the light of their historical role and experience with Nazism and the desire to prevent its revival.
The Court also noted that the law included several exemptions. In particular, the Court emphasised that domestic courts had interpreted the law so that “obvious and clear” opposition to the ideology embodied by the symbols was exempted from liability, describing it as “an important safeguard for the right to freedom of expression." That is, those people who clearly distanced themselves from Nazi ideology would not be liable.
Although the Court acknowledged that Mr Nix did not intend to spread totalitarian propaganda, incite violence, or utter hate speech, the Court agreed with the approach of the German domestic courts in finding that there was no connection between the text of the blog post and the policies which the Nazi symbols stood for. Rather, Mr Nix had used the symbol as a gratuitous 'eye-catching device', which is "exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication" – the so-called “communicative taboo”. Domestic case law required clear and obvious opposition to Nazi ideology, which was not evident in the blog post.
Mr Nix had argued that the use of the image was protest against discrimination against children with migrant background and the working methods of the employment office, which he considered to resemble those employed by the Nazis. The Court acknowledged that restrictions on political expression or on debate on questions of public interest will rarely be justified. However, the domestic court was justified in considering the blog post in isolation, because it was not clear that it was intended to be part of a series that intended to contribute to a public debate. The blog post did not mention that Mr Nix's daughter was of foreign origin and was discriminated against.
On this basis, the Court held that in light of all the circumstances of the case, the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation.
The Court also reiterated, as has been held in earlier cases, that Article 10 of the Convention applies to the internet as a means of communication, and that the publication of photographs on the internet falls within the right to freedom of expression.
This decision demonstrates that intention is not necessarily relevant, to the extent that a person may not intend to support or revive Nazism, when considering whether someone has infringed the prohibition against publishing or using Nazi symbols. Although Mr Nix appeared to intend to contribute to a debate of public interest, which had nothing to do with Nazism, his conviction was upheld because his use of the symbol was intended to be an "eye-catching device'".
Although the Court noted that the blog post did not refer to racism or discrimination, the Court did not provide certainty as to whether, had Mr Nix referred to his complaints regarding alleged racial discrimination against his daughter, the outcome would have been any different.
More broadly, this case illustrates the structured proportionality analysis in relation to freedom of expression, which the High Court has recently embraced in relation to the implied freedom of political communication (see, for example, McCloy v New South Wales  HCA 34).
The full judgment can be found here.
Sarah Hort is a Graduate at Ashurst