HFHR: ideological boycott is constitutionally protected

The Helsinki Foundation has submitted an amicus curiae brief in proceedings concerning the boycott of a brand of beer.

The defendants have organised the campaign of public spilling of beer produced by a well-known brewery after the CEO of the brewery’s corporate owner published derogative statements against sexual minorities on his Facebook profile. They also decided to refrain from serving the brewery’s beer in their pub. Several days after the boycott was announced, a number of other pubs, from Warsaw and other cities in Poland, joined the action. The companies affected by the boycott considered the defendants’ conduct an act of unfair competition and sued the campaign’s organisers for damages.

“The Unfair Competition Act cannot be interpreted separately from the constitutional and international standards of the freedom of speech. The Act awards protection primarily against actions that are motivated economically, rather than by political beliefs or a world-view”, notes Katarzyna Wiśniewska, a lawyer of the HFHR.

In its brief, the HFHR reviews the points of law relevant to the case against the background of freedom of speech standards developed in the case law of the ECtHR and the US Supreme Court. Both courts decided that the guarantees of the freedom of expression extend not only to “classic” forms of communication such as speaking or writing but also to certain forms of symbolic conduct. The level of protection awarded to expression depends on the latter’s purpose, and the treatment given to speech concerning important matters of public debate is different from that suffered by commercial content (such as advertisements).

Based on this, the HFHR argued that the outcome of the case will hinge on determination of the defendants’ motive. If their protest campaign is proved to have been an expression of protest against unacceptable, in their opinion, statements of the brewery companies’ CEO, then they should be considered having acted within the constitutionally protected sphere of free expression.

“A boycott motivated by one’s beliefs is an instrument used in many countries, by both liberal and conservative circles. This measure is increasingly more often used in Poland, too. The conclusion that such actions constitute an ‘act of unfair competition’ would possibly violate the freedom of expression”, says lawyer Marcin Szwed, HFHR.