Regional court: boycott of beer unlawful

The Regional Court in Warsaw has entered the judgment in the case of a boycott of a well-known brand of beer. The court ruled that the boycott was an act of unfair competition that had violated the interests of corporate owners of the brand. The court has ordered the foundation which organised the boycott campaign to pay PLN 5,000 for a charitable cause and to publish an apology on a Facebook profile. The judgment is not yet final.

Two years ago, the defendants, anti-discrimination activists, organised a campaign of the public spilling of beer produced by a well-known brewery. It was a response to homophobic sentiments published on a Facebook profile by the CEO of the brewery’s corporate owner. They activists 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 campaign. The companies affected by the boycott considered the defendants’ conduct an act of unfair competition and sued the campaign’s organisers for damages.

The regional court ruled in favour of the claimants. In the reasons given to the judgment, the court noted that the boycott organised by the defendants was not justified by any important public interest. According to the court, a boycott should persuade a given entrepreneur to act in a certain way. A boycott could have been justified if it was, for example, aimed at persuading a business to end discriminatory treatment of employees at work. In the discussed case, according to the court, it is impossible to assume that the campaign pursued such an aim because the CEO of the brewery’s corporate owner had already apologised for his statement. Persons involved in the boycott were in fact demanding change of the CEO’s point of view and such purpose cannot justify their actions. Moreover, the court stated that the personal views expressed by the CEO on his Facebook profile page could not be attributed to the corporation that owns the brewery.

The HFHR has involved itself in the case by submitting a legal opinion to the Regional Court. “We have analysed the admissibility of sanctioning of an economic boycott in the light of the jurisprudence of the ECtHR and the US Supreme Court”, says Katarzyna Wiśniewska, a lawyer working with the HFHR. “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, including boycotts”, Katarzyna Wiśniewska adds.

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). Considering the above, the HFHR argued that the outcome of the case would hinge on determination of the defendants’ motive. If the protest campaign organised by the defendants is proved to have been a protest against unacceptable, in their opinion, statements of the brewery holding’s 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 and assuming that it can be an act of unfair competition would be an act of excessive interference in freedom of expression”, explains Marcin Szwed, a lawyer from the HFHR.