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FIRST
SECTION
CASE OF PFEIFER v. AUSTRIA
(Application
no. 12556/03)
JUDGMENT
STRASBOURG
15
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pfeifer v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
Mr H.
Schäffer, ad hoc judge,
and Mr S. Nielsen,
Section Registrar,
Having
deliberated in private on 18 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12556/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Karl Pfeifer (“the
applicant”), on 7 April 2003.
- The
applicant was represented by Lansky, Ganzger and Partners, lawyers
practising in Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador
F. Trauttmansdorff, Head of the International Law Department at
the Federal Ministry of Foreign Affairs.
- The
applicant alleged that the Austrian courts had failed to protect his
reputation against defamatory allegations made in a magazine.
- The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
Mrs E. Steiner, the judge elected in respect of Austria, withdrew
from sitting in the case (Rule 28). The Government accordingly
appointed Mr H. Schäffer to sit as an ad hoc judge
(Article 27 § 2 of the Convention and Rule 29 § 1).
- On
4 November 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant is a freelance journalist who lives in
Vienna. From 1992 to 1995 he was the editor of the official magazine
of the Vienna Jewish community.
A. Background
- In
the beginning of 1995 the Academy of the Austrian Freedom Party
(Freiheitliche Partei Österreichs) published an article
in its yearbook, written by P., a professor of political sciences at
Münster University. The article was entitled “Internationalism
against nationalism: an eternal mortal enmity?” and alleged
that the Jews had declared war on Germany in 1933. Moreover, it
trivialised the crimes of the Nazi regime.
- In
February 1995 the applicant published a commentary on this article in
the magazine of the Vienna Jewish community. It was entitled “Freedom
Party's 1995 yearbook with (neo-)Nazi tones”. He criticised P.
in harsh terms for using Nazi terminology and disseminating ideas
which were typical of the “Third Reich”. More
specifically, he accused P. of reviving the old Nazi lie of a
worldwide Jewish conspiracy and of confounding the roles of
perpetrators and victims.
- Subsequently,
P. brought defamation proceedings under Article 111 of the Criminal
Code (Strafgesetzbuch) against the applicant. The Vienna
Regional Criminal Court (Landesgericht für Strafsachen)
acquitted the applicant. Its judgment was upheld on 4 May 1998 by the
Vienna Court of Appeal (Oberlandesgericht), which found that
the applicant's criticism constituted a value judgment which had a
sufficient factual basis in the numerous quotations from P.'s
article. Having regard to the publication of P.'s article in the
yearbook of a political party and given the highly sensitive topic,
the applicant's criticism, though harsh, was not excessive.
- Two
years later, in April 2000, the Vienna Public Prosecutor's Office
brought proceedings against P. on charges under the National
Socialism Prohibition Act (“the Prohibition Act” –
Verbotsgesetz). Relying on numerous quotations from P.'s
article in the Freedom Party's 1995 yearbook, the public prosecutor
argued that the article constituted a national-socialist activity
within the meaning of section 3g of the Prohibition Act. Shortly
before the date scheduled for the trial, P. committed suicide.
- On
8 June 2000 the weekly Zur Zeit, a right-wing magazine whose
chief editor M. was the former Chairperson of the Freedom Party's
Academy, published a two-and-a-half-page article with the headline
“The deadly terror of virtue” (“Tödlicher
Tugendterror”). It referred to the applicant's criticism of
P.'s article in 1995 and alleged that the applicant's comment had
unleashed a manhunt which had eventually resulted in the death of the
victim. It referred to the applicant and a number of other persons,
mostly politicians of the Austrian Socialist Party or the Green Party
and also a number of journalists, a historian and a professor of
political sciences, as members of a “hunting society”
which used the Prohibition Act as a tool to attack persons close to
the Freedom Party and had ultimately chased one victim to his death.
The article was accompanied by pictures of the members of the alleged
“hunting society”, including a picture of the applicant.
- The
applicant brought defamation proceedings under Section 6 of the Media
Act (Mediengesetz) against the publishing company owning Zur
Zeit.
- On
20 March 2001 the Vienna Regional Criminal Court found that the
article fulfilled the elements of defamation and ordered the
defendant company to pay the applicant compensation under section 6
of the Media Act. In addition the defendant was ordered to publish
the judgment.
- The
Regional Court noted that the impugned article accused the applicant
of being morally responsible for P.'s death. Certain facts were
undisputed, namely that the applicant had written a critical
commentary on P.'s article, that P. had been charged under the
Prohibition Act and that he had died before the opening of the trial.
However, the allegation that the applicant was part of a “hunting
society”, that is, a group of persons persecuting P. and
eventually causing his death, amounted to a statement of fact, the
truth of which had not been established. In particular, the defendant
company had not offered any proof for the causal link between the
applicant's article and P.'s death. Even if the statement were to be
treated as a value judgment, it was excessive as it presented a
conclusion which went far beyond what could reasonably be based on
the underlying facts. Thus, it transgressed the limits of criticism
permitted by Article 10 of the Convention.
- On
15 October 2001 the Vienna Court of Appeal set the judgment aside on
an appeal by the defendant.
- It
found that the impugned article contained a value judgment which was,
however, not excessive. The use of the term “hunting society”
did not imply coordinated activities of a group of persons with the
aim of destroying P.'s existence. Thus, the article could be
understood as implying that the applicant's and other persons'
activities had eventually caused P.'s death but it did not contain an
accusation of their having foreseen or planned this outcome. The
factual basis was sufficient to attribute some moral responsibility
for P.'s death to the applicant and a number of other persons who had
been active either by criticising P. in the media or by bringing
actions against him in the courts. As regards the applicant, the
article referred to his critical commentary on P.'s publication,
thereby enabling the reader to assess whether or not he shared the
opinion expressed in the impugned article. Moreover, the reader was
aware that the article was written from a political and ideological
point of view and involved a certain degree of exaggeration. In sum,
it remained within the limits of permissible criticism set by Article
10 of the Convention.
B. The proceedings at issue
- Meanwhile,
in February 2001 M. addressed a three-page letter to the subscribers
to Zur Zeit asking them for financial support. As a reason for
this request readers were told that the weekly Zur Zeit was
under massive pressure from anti-fascists who, after having
campaigned against Kurt Waldheim, Jörg Haider and other
“undesirables”, had now chosen Zur Zeit as their
target. It alleged that the above-mentioned group was trying to
damage Zur Zeit by means of disinformation in the media and by
instituting a multitude of criminal proceedings and civil actions.
The
relevant passage of this letter reads as follows:
“Then there is the case of Karl Pfeifer v. Zur
Zeit. The long-standing editor of the Jewish religious
community's magazine, Karl Pfeifer, was identified following
Professor P.'s [family name in full] death as a member of the hunting
society that drove the conservative political scientist to his death.
It was common knowledge that court proceedings were due to be opened
against P. under the Nazi Prohibition Act on account of his
statements in the Freedom Party's 1995 yearbook. The Jewish
journalist Karl Pfeifer had condemned the statements for their Nazi
tone and as a result had unleashed the judicial avalanche against P.
When Zur Zeit dared to show that this was the cause of the
suicide, Pfeifer lodged a complaint. The extremely complex,
time-consuming and costly proceedings, naturally accompanied by a
corresponding media campaign in the trendy left-wing rags, are still
in progress.”
- On
15 March 2001 the applicant brought a further set of defamation
proceedings under Article 111 of the Criminal Code against M. and
under section 6 of the Media Act against the publishing company
owning Zur Zeit.
- On
4 September 2001 the Vienna Regional Criminal Court decided to
adjourn the proceedings pending the Vienna Court of Appeal's judgment
in the first set of defamation proceedings. Once the latter had given
its judgment of 15 October 2001 (see paragraphs 15 and 16 above), the
Regional Court resumed the proceedings.
- On
31 January 2002 the Regional Court acquitted the defendants. It noted
that the two sets of defamation proceedings related to very similar
factual and legal issues. Again, as in the article “The deadly
terror of virtue”, the applicant was referred to as a member of
a “hunting society” which had driven P. to commit
suicide. Thus, it was alleged that there was a causal link between
the applicant's criticism of P.'s article and the latter's death. The
considerations which had led the Court of Appeal to acquit the
defendants in the first set of proceedings also applied in the
present case. The Regional Court followed the appellate court's view
expressed in the judgment of 15 October 2001 and found that the
impugned letter contained a value judgment which relied on a
sufficient factual basis. In this connection, it noted that
addressees of the letter, even if they had not read the article “The
deadly terror of virtue”, were given a summary of its contents
which enabled them to form an opinion about the pertinence of the
allegation raised. The value judgment was not excessive, although the
underlying facts were commented on from a strongly ideological point
of view. It followed that the publication at issue was protected by
Article 10 of the Convention.
- On
1 August 2002 the Vienna Court of Appeal dismissed an appeal by the
applicant, upholding the Regional Court's assessment that the two
sets of proceedings were so closely linked that the principles and
considerations set out in its previous judgment of 15 October 2001
applied.
- The
judgment was served on the applicant's counsel on 7 October 2002.
II. RELEVANT DOMESTIC LAW
- Article
111 of the Criminal Code (Strafgesetzbuch), reads as follows:
“1. Anybody who, in such a way that it
may be noticed by a third person, attributes to another a
contemptible characteristic or sentiment or accuses him of behaviour
contrary to honour or morality and such as to make him contemptible
or otherwise lower him in public esteem shall be liable to
imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a
printed document, by broadcasting or otherwise in such a way as to
make the defamation accessible to a broad section of the public,
shall be liable to imprisonment not exceeding one year or a fine...
3. The person making the statement shall not
be punished if it is proved to be true. In the case of the offence
defined in paragraph 1 he shall also not be liable if circumstances
are established which gave him sufficient reason to believe that the
statement was true.”
24. Section
6 of the Media Act provides for the strict liability of the publisher
in cases of defamation; the victim can thus claim damages from him.
In this context “defamation” has to be read
as defined in Article 111 of the Criminal Code.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the Austrian courts had failed to protect
his reputation against the allegations contained in Mr M.'s letter to
the subscribers to Zur Zeit. He relied on Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant asserted that the Austrian courts had wrongly qualified the
impugned statement as a value judgment. In his view the accusation of
being a “member of a hunting society” presupposed
coordinated activities by several persons with the aim of driving
Professor P. to his death, amounting to factual allegations which
were not supported by any proof since the applicant, acting alone
without any cooperation or coordination with others, had done no more
than publish one article criticising views voiced by P. He had done
so in 1995, years before P.'s prosecution under the Prohibition Act
and eventual suicide. Clearly, there was no causal link between the
applicant's article and P.'s suicide.
- It
had to be taken into account that P. had at the time brought
proceedings against the applicant, which had remained unsuccessful
since the courts had found that the applicant had remained within the
limits of acceptable criticism. In fact, he had not accused P. of
being a neo-Nazi or of having committed offences under the
Prohibition Act, but had only reproached him with employing Nazi
tones.
- Even
if the statement were to be regarded as a value judgment it lacked a
sufficient factual basis. Freedom of political speech reached its
limits in a case such as the present one, where the applicant's
opponents had damaged his reputation by making unfounded allegations.
- The
Government accepted that the State's obligations under Article 8
could extend to the adoption of measures designed to secure respect
for private life in the sphere of relations between individuals. They
went on to say that what was decisive in weighing the applicant's
right to the protection of his private life against the right to
freedom of expression was whether and to what extent the statement at
issue had made a contribution to a debate of general interest. The
impugned statement in the letter to subscribers to Zur Zeit
and the related previous article had to be seen in the context of an
ongoing political discussion between persons of different ideological
convictions.
- Referring
to the Court's case-law under Article 10 of the Convention, the
Government asserted that, given the interest in a free exchange of
political opinions, including those that offend, shock or disturb,
the Austrian courts could reasonably have considered that the
statement referring to the applicant as a “member of a hunting
society that eventually caused P.'s suicide” was a value
judgment which had a sufficient factual basis. The applicant, though
not a politician, had participated in a political debate and was
therefore himself required to show a higher degree of tolerance
towards criticism. In sum, the Austrian courts had not breached the
applicant's rights under Article 8 in attaching greater weight to the
freedom of expression than to the applicant's interest in the
protection of his reputation.
2. The Court's assessment
- As
to the applicability of Article 8, the Court reiterates that “private
life” extends to aspects relating to personal identity, such as
a person's name or picture, and furthermore includes a person's
physical and psychological integrity; the guarantee afforded by
Article 8 of the Convention is primarily intended to ensure the
development, without outside interference, of the personality of each
individual in his relations with other human beings. There is
therefore a zone of interaction of a person with others, even in a
public context, which may fall within the scope of “private
life” (see Von Hannover v. Germany, no. 59320/00, §
50, ECHR 2004 VI, with further references).
- The
Court has found the publication of a person's photo to fall within
the scope of his or her private life even where the person concerned
was a public figure (see Schüssel v. Austria (dec.), no.
42409/98, 21 February 2002, and Von Hannover, cited
above, § 53).
- What
is at issue in the present case is a publication affecting the
applicant's reputation. It has already been accepted in the
Convention organs' case-law that a person's right to protection of
his or her reputation is encompassed by Article 8 as being part of
the right to respect for private life. In Chauvy and Others v.
France (no. 64915/01, § 70, ECHR 2004 VI), concerning a
case brought under Article 10, the Court found that a person's
reputation, which was affected by the publication of a book, was
protected by Article 8 as part of the right to respect for private
life and had to be balanced against the right to freedom of
expression (this approach was followed in Abeberry v. France
(dec.), no. 58729/00, 21 September 2004, and Leempoel & S.A.
ED. Ciné Revue v. Belgium, no. 64772/01, § 67,
9 November 2006). In White v. Sweden (no. 42435/02, §§
19 and 30, 19 September 2006), relating to a complaint under
Article 8, the right to protection of one's reputation against
allegedly defamatory statements in newspaper articles was considered
to fall within the scope of “private life” (see also,
mutatis mutandis, Minelli v. Switzerland (dec.), no.
14991/02, 14 June 2005, in which a complaint about the alleged
failure to protect a person against a critical newspaper article was
considered to fall within the scope of “private life” as
protected by Article 8, while the question whether that Article
embodied a right to protection of reputation and honour as such was
left open in Gunnarsson v. Iceland (dec.), no. 4591/04, 20
October 2005). Finally, in Fayed and the House of Fraser Holdings
plc v. the United Kingdom (no. 17101/90, Commission decision of
15 May 1992), the European Commission of Human Rights had found that
the publication of certain findings in a report drawn up by the State
authorities constituted an interference with the applicants' right to
respect for their private life within the meaning of Article 8. The
Court considers that a person's reputation, even if that person is
criticised in the context of a public debate, forms part of his or
her personal identity and psychological integrity and therefore also
falls within the scope of his or her “private life”.
Article 8 therefore applies. This is not disputed by the parties.
- The
Court notes that the applicant did not complain of an action by the
State but rather of the State's failure to protect his reputation
against interference by third persons.
- The
Court reiterates that, although the object of Article 8 is
essentially that of protecting the individual against arbitrary
interference by the public authorities, it does not merely compel the
State to abstain from such interference: in addition to this
primarily negative undertaking, there may be positive obligations
inherent in effective respect for private and family life. These
obligations may involve the adoption of measures designed to secure
respect for private and family life even in the sphere of the
relations of individuals between themselves. The boundary between the
State's positive and negative obligations under this provision does
not lend itself to precise definition. The applicable principles are,
nonetheless, similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the
State enjoys a certain margin of appreciation (see Von Hannover,
cited above, § 57, with further references).
- The
main issue in the present case is whether the State, in the context
of its positive obligations under Article 8, has achieved a fair
balance between the applicant's right to protection of his
reputation, which is an element of his “private life” and
the other party's right to freedom of expression guaranteed by
Article 10 of the Convention (ibid., § 58; see also Chauvy
and Others, cited above, § 70).
- The
present case has to be seen against a background of an ongoing
dispute which was fought out in the media and before the Austrian
courts.
- It
had started with P.'s contribution in the 1995 yearbook of the
Austrian Freedom Party and the applicant's commentary in the official
magazine of the Vienna Jewish Community, criticising him for
employing (neo )Nazi tones. P.'s action for defamation against
the applicant under Article 111 of the Criminal Code had remained
unsuccessful, since the courts found that the applicant's criticism,
though harsh, was a value judgment with a sufficient factual basis
(see paragraph 9 above).
- Following
the institution of criminal proceedings by the Public Prosecutor
against P. under the Prohibition Act in April 2000 on account of the
article published in the 1995 yearbook, and P.'s suicide shortly
before the trial, the struggle had continued with a publication in
the weekly Zur Zeit in June 2000, which referred to the
applicant and a number of other persons as members of a “hunting
society” which had chased P. to his death. The applicant's
action for defamation remained unsuccessful. While the first-instance
court considered the statement to be a statement of fact, the truth
of which had not been established, or alternatively, an excessive
value judgment (see paragraphs 13 and 14 above), the appellate court
treated it as a value judgment which was not excessive. In essence it
found that the applicant's and other persons' actions concerning P.
provided a sufficient factual basis for holding them morally
responsible for P.'s death (see paragraphs 15 and 16 above).
- In
the proceedings which are now at issue, the domestic courts had to
decide whether the statements in Mr M.'s letter to the subscribers to
Zur Zeit, again accusing the applicant of being a “member
of a hunting society” which had caused P. to commit suicide,
fulfilled the elements of the offence of defamation. They followed
the approach taken in the previous set of proceedings and considered
the impugned statement to be a value judgment relying on a sufficient
factual basis. In sum they considered that the statement, though made
from a strongly ideological point of view, was not excessive (see
paragraphs 20-21 above).
- Having
regard to the background of the case, the Court reiterates its
case-law under Article 10 relating to the essential role the press
plays in a democratic society. Although it must not overstep certain
bounds, in particular in respect of the reputation and rights of
others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see, among
many other authorities, Scharsach and News Verlagsgesellschaft v.
Austria, no. 39394/98, § 30, ECHR 2003 XI, and Von
Hannover, cited above, § 58). Journalistic freedom also
covers possible recourse to a degree of exaggeration, or even
provocation (ibid.).
- In
this context, the Court considers that the State's obligation under
Article 8 to protect the applicant's reputation may arise where
statements going beyond the limits of what is considered acceptable
criticism under Article 10 are concerned. The Court will therefore
examine whether or not the Austrian courts failed to protect the
applicant against excessive criticism.
- As
regards the general principles relating to the freedom of the press
in the context of political debate, the Court refers to the summary
of its established case-law in the cases of Feldek v. Slovakia
(no. 29032/95, §§ 72-74, ECHR 2001 VIII, with
further references) and Scharsach and News Verlagsgesellschaft
(cited above, § 30). It reiterates that there is little
scope under Article 10 § 2 for restrictions on political speech
or on debate on questions of public interest (see, among many other
authorities, Feldek, cited above, § 74). Moreover, the
Court notes that the applicant was himself a person in the public
eye, whose criticism of P.'s publication had been framed in strong
terms (see, mutatis mutandis, Minelli, cited
above).
- Much
of the parties' argument in the present cases relates to the
characterization of the text at issue as a statement of fact or as a
value judgment. In this context, the Court reiterates its established
case-law to the effect that, while the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. Where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment without any factual basis to support it may be
excessive (see, for instance, Feldek, cited above, §§
75-76; Jerusalem v. Austria, no. 26958/95, § 43, ECHR
2001 II; De Haes and Gijsels v. Belgium, judgment
of 24 February 1997, Reports of Judgments and Decisions
1997-I, p. 236, § 47; and Oberschlick v. Austria (no. 2),
judgment of 1 July 1997, Reports 1997 IV, p. 1276, §
33). As the Court has noted in previous cases, the difference lies in
the degree of factual proof which has to be established (see
Scharsach and News Verlagsgesellschaft, cited above, § 40).
- The Court is not convinced by the domestic courts'
assessment that the statements at issue are value judgments. The
statement “Karl Pfeifer was identified following Professor P.'s
death as a member of a hunting society that drove the political
scientist to his death” clearly establishes a causal link
between the applicant's and other persons' actions, and P.'s suicide
in 2000. This was explicitly accepted by the domestic courts in the
present proceedings (see paragraph 20 above). Whether or not an act
has a causal link with another is not a matter of speculation, but is
a fact susceptible of proof. Although it is undisputed that the
applicant had written a critical commentary on P.'s article in 1995
and that, years later, in 2000, P. had been charged under the
Prohibition Act in relation to this article and had committed
suicide, the defendant had not offered any proof for the alleged
causal link between the applicant's article and P.'s death. It is
true that statements that shock or offend the public or a particular
person are also protected by the right to freedom of expression under
Article 10. However, the statement here at issue went beyond that,
claiming that the applicant had caused Professor P.'s death by
ultimately driving him to commit suicide. By writing this, Mr M.'s
letter to the subscribers to Zur Zeit overstepped acceptable
limits, because it in fact accused the applicant of acts tantamount
to criminal behaviour.
- Even
if the statement were to be understood as a value judgment in so far
as it implied that the applicant and others were morally responsible
for P.'s death, the Court considers that it lacked a sufficient
factual basis. The use of the term “member of a hunting
society” implies that the applicant was acting in cooperation
with others with the aim of persecuting and attacking P. There is no
indication, however, that the applicant, who merely wrote one article
at the very beginning of a series of events and did not take any
further action thereafter, acted in such a manner or with such an
intention. Furthermore, it needs to be taken into account that the
article written by the applicant, for its part, did not transgress
the limits of acceptable criticism.
- In
those circumstances the Court is not convinced that the reasons
advanced by the domestic courts for protecting freedom of expression
outweighed the right of the applicant to have his reputation
safeguarded. The Court therefore considers that the domestic courts
failed to strike a fair balance between the competing interests
involved.
There
has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage. He argued that given his personal history (being Jewish, he
had had to flee from Austria in 1938 and many of his family members
had been killed by the Nazi regime), he had suffered particularly
from the fact the courts had failed to protect him against the
wrongful accusation that he had driven P. to his death in
collaboration with others.
- The
Government considered that the finding of a violation would provide
sufficient compensation for any non-pecuniary damage suffered by the
applicant.
- The
Court accepts that the failure to protect the applicant's reputation
against the accusations at issue must have caused him feelings of
distress. Making an assessment on an equitable basis it awards the
applicant EUR 5,000 as compensation for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,572.72 for the costs and expenses
incurred before the domestic courts and EUR 5,551.38 for those
incurred before the Court. These sums included value-added tax (VAT).
- The
Government commented that the costs for two requests for adjournment
should be deducted from the costs incurred in the domestic
proceedings, since they had not served to prevent the alleged
violation. Furthermore, they argued that the amount claimed for the
Convention proceedings was excessive. Applying the fees due under
domestic law, only an amount of EUR 3,205.62, including VAT, was to
be reimbursed.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 10,000, covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds by five votes to two that there has been a
violation of Article 8 of the Convention;
- Holds by five votes to two
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros) in respect of non-pecuniary damage and EUR 10,000 (ten
thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following dissenting opinions are
annexed to this judgment:
(a) dissenting
opinion of Mr Loucaides;
(b) dissenting
opinion of Mr Schäffer.
L.L.
S.N.
DISSENTING OPINION OF JUDGE LOUCAIDES
I do
not agree with the finding of the majority that there has been a
violation of Article 8 in this case on account of the failure to
protect the applicant against excessive defamatory criticism damaging
to his reputation.
For
the purposes of my opinion it is, I believe, useful to recount the
basic facts of the case.
In
the beginning of 1995 P. (a professor of political sciences)
published an article in which he alleged that the Jews had declared
war on Germany in 1933. He also trivialised the crimes of the Nazi
regime. In February 1995 the applicant published a commentary on this
article in which he criticised P. in harsh terms for using Nazi
terminology and disseminating ideas which were typical of the “Third
Reich”. More specifically he accused P. of reviving the old
Nazi lie of a worldwide Jewish conspiracy and of confounding the
roles of perpetrators and victims. Subsequently P. brought defamation
proceedings against the applicant, which failed because the courts
found that the applicant's criticism constituted a value judgment
with a sufficient factual basis derived from P.'s article.
In
April 2000 P. was prosecuted on charges under the National Socialism
Prohibition Act in respect of his article. Shortly before the date
scheduled for his trial, P. committed suicide.
In
June 2000 the weekly Zur Zeit published an article which
referred to the applicant's criticism of P.'s article of 1995 and
alleged that the applicant's comment had unleashed a manhunt which
had eventually resulted in the death of the victim. It referred to
the applicant and a number of other persons as members of a “hunting
society” which had persecuted P., driving him eventually to his
death. In February 2001 this statement was repeated in a letter to
subscribers of Zur Zeit. The applicant brought defamation
proceedings in respect of this article and in respect of the letter,
which failed because the competent courts in Austria found that they
contained a value judgment which was not excessive and which relied
on a sufficient factual basis.
It
appears that the defamation that the applicant was complaining about
was the statement that he was a member of a “hunting society”
which had driven P. to commit suicide, and that there was a causal
link between the applicant's criticism of P.'s article and the
latter's death.
Admittedly
the impugned statement was expressed in an aggressive and hostile
style. However, this is not enough to lead to the conclusion that it
amounts to a violation of the applicant's right to respect for his
reputation.
In
deciding whether or not the impugned statement was so defamatory as
to qualify as a violation of the right in question, it is important
to understand its meaning and effect in the context of the above
facts. I believe that the statement cannot reasonably be
interpreted as meaning that the applicant killed P. or intentionally
acted in such a way as to cause his death.
P. committed suicide, and therefore the statement in its worst
possible meaning can only be taken as connecting P.'s decision to end
his life with the criticism by the applicant and others and his
prosecution. In other words, it can only be understood to mean that
these incidents upset P. to the point of his committing suicide. To
my mind this is a value judgment in the form of an opinion based on
the sequence of events, and this opinion may be held to express a
possibility which cannot be considered unreasonable. It is important
to note that the impugned statement did not contain an accusation
that the applicant, through his article, had planned to cause P. to
commit suicide. And no intelligent person could possibly understand
the statement as implying such an accusation. In so far as the
impugned statement can reasonably be interpreted as meaning that the
applicant's article and other similar criticisms or judicial
proceedings by other persons against P. had led him to commit suicide
without this having been the intention of any of these persons,
I do not find any defamation of the applicant that could justify a
finding of a violation of Article 8 of the Convention. As to the use
of the term “hunting society”, I agree with the Vienna
Court of Appeal that this term does not necessarily mean a group of
persons who coordinated their activities with the aim of destroying
P.'s existence. In the context of the above facts it may reasonably
be understood to mean several persons who through their acts –
such as articles – had hurt P.'s feelings, and therefore could
be grouped together in one category (that of the “hunting
society”). The term “hunting”, if taken literally,
is excessive, but, in my opinion, it was used more as a figure of
speech, in order to designate the unfriendly attitude of these
persons towards P.
In
sum, I agree with the final judgment of the domestic courts: I find
that the impugned statement, which the applicant complained had
injured his reputation, was an expression of an opinion, a “value
judgment” based on a sequence of relevant events which provided
a sufficient factual basis. In my view, the interpretation of this
statement adopted by the applicant and the majority in this case is
exaggerated and unrealistic. It seems to me that it offended the
applicant but did not exceed the limits of freedom of expression
guaranteed by Article 10 of the Convention. In this connection I must
repeat the classic statement about freedom of speech, initiated in
the Handyside v. the United Kingdom case (Series A no. 24, p.
23, § 49):
“Freedom of expression constitutes one of the
essential foundations of ... a [democratic] society, one of the basic
conditions for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, it is applicable not only to
'information' or 'ideas' that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population.
Such are the demands of that pluralism, tolerance and broadmindedness
without which there is no 'democratic society'.”
Finally, I feel the need to express my great satisfaction at the
clarity and firmness with which, for the first time, a judgment of
this Court has made it clear that a person's right to protection of
his or her reputation is protected by Article 8 as being part of the
right to respect for private life, a position that I have always
supported.
DISSENTING OPINION OF JUDGE SCHÄFFER
- In
my opinion the Austrian courts did not neglect or fail to protect the
rights and freedoms of the applicant as provided by the Convention. I
fully agree with the Court (majority)'s deliberations and its view
that the protection of a person's reputation is encompassed within
the scope and meaning of “private life” (Article 8 of the
Convention). Moreover, it is important that this point is not
disputed by the parties.
- The
question whether the Convention not only secures rights and freedoms
to individuals but also imposes positive obligations on the member
States can probably not be answered for all rights and freedoms in
the same way; hence one cannot give a general dogmatic formula. But
it cannot be neglected that an adequate interpretation of the
Convention depends on a fair balance between different rights, and
especially a balance between the protection of “private life”
(including the reputation) of one person and the right to freedom of
expression of others, a position which is already reflected and
realised from the very beginning in the reservations to both of the
rights as set out in the relevant provisions (Articles 8 and 10
contain the same values and nearly the same wording in their
respective reservations, both referring to the “rights and
freedoms of others”).
- Frequently
we have to deal with bipolar (or even multi-polar) legal
relationships which can be judged only by “practical
concordance” (compare, for example, Konrad Hesse, Grundzüge
des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed.
1995, RN 72 and 317 (in general), 393 and 400 (concerning freedom of
information especially), and the recent jurisprudence of the Austrian
Constitutional Court (öVfGH, 1 December 2006, B 551/06,
referring to Article 10 of the Convention: “... die
konkurrierenden Grundrechtspositionen [sind] unter Berücksichtigung
der in den Gesetzesvorbehalten angesprochenen Rechtsgüter
gegeneinander abzuwägen und auf diese Weise die damit
zusammenhängenden Interessen der Parteien zu einem angemessenen
Ausgleich zu bringen”). Hence, it is in the first place the
task and duty of the domestic legislature to find a fair balance
between the legally protected values and interests at stake, and
secondly, the task of the domestic courts to ensure that this balance
is observed and implemented in individual cases – in both
cases, of course, in the light and spirit of the Convention.
- This
observation has the purpose of underlining that the European Court of
Human Rights has to operate very carefully when ruling on positive
State obligations. It has to find a fair and adequate balance between
safeguarding the private life of one individual and the freedom of
expression of another or others, which are both essential in a
“democratic society” (as we conceive of it in Europe).
And perhaps there is a slight difference between cases where the
private-life guarantee is in conflict with works of art and cases
where the protection of private life is competing with
the freedom of open political debate. Whereas works of art –
even if they offend somebody – enrich culture and social life,
free expression – even if it is shocking or provocative (within
certain limits) – is indispensable for a democratic society.
- In
other words, where both values are at stake, the result of the
Court's balancing exercise ought not to depend on which particular
Article of the Convention has been relied on in the case before it.
Freedom of expression does not automatically prevail over the rights
of others if an applicant complains to the Court of an infringement
of the right to freedom of information. And on the other hand, the
protection of private life will not necessarily prevail over freedom
of expression if the applicant complains to the Court of a violation
of the right to respect for private life (for example, failure to
protect his or her reputation). Of course, such balancing should
always have regard to all the elements and standards which have
already been developed in the Court's long-standing jurisprudence.
But these criteria have to be applied sensitively, equitably and with
respect and concern for the margin of appreciation afforded to the
national authorities.
- With
that in mind, it is true that the present case has to be seen against
the background of an ongoing dispute between exponents of different
ideological positions and convictions which was fought out in the
media and before the courts in Austria (see paragraph 39 of the
judgment). All the problems in this case
began with an article by P. (a professor, who later committed
suicide), published in the 1995 Yearbook of the Austrian Freedom
Party (FPÖ). It should be mentioned that one of the three
co-editors of the Yearbook (M.) was the opponent of the applicant (Mr
Pfeifer) in the subsequent defamation proceedings. As a co-editor he
had an understandable motive for participating in the public
discussion aroused by the above-mentioned publication, and uttering
his opinion about the treatment of and comments concerning the now
deceased author (P.).
- In
my opinion the same criteria have to apply to the freedom of
expression of the applicant (Mr Pfeifer) as to the freedom of
expression of the defendant (M.). And, indeed, the Austrian courts in
both cases – referring to the Court's jurisprudence –
were of the opinion that the expressions used constituted harsh, but
not excessive criticism (case of P., Vienna Court of Appeal
(Oberlandesgericht), judgment of 4 May 1998, quoted in paragraph 9 of
the judgment; case of M., Vienna Court of Appeal, judgment of 15
October 2001, and Vienna Regional Court, judgment of 31 January
2002, quoted in paragraphs 15, 16 and 20 of the judgment). In both
cases the Austrian courts held that the use of the words in question
constituted “a value judgment which relied on a sufficient
factual basis”.
- A
necessary prerequisite for the description and explanation of a
(social) condition or a (social) event, but also for a judgment on a
particular concept – such as “Jagdgesellschaft”
(“hunting society”) in this precise case – is its
specification or exact conceptual connection. It does not necessarily
follow from a concept that this concept empirically corresponds to
anything. A phenomenon such as a “Jagdgesellschaft”
should actually exist in the social environment and not merely as a
language statement. Consequently “Jagdgesellschaft”
does not denote a fact.
- At
any rate, in the German language the phrase “Jagdgesellschaft”
(hunting society/hunting party) – as a language statement –
does not necessarily mean an organised group of consciously active
collaborators, it very often also refers to a spontaneous social
phenomenon: parallel action or an agitated mass. Different factors
and persons may be active in such a way that something like
collaboration results, although one cannot attribute all the effects
or concrete responsibility to a single person, and nevertheless there
is some kind of social causality. It cannot be inferred from the fact
of P.'s suicide that the suspected (insinuated) cause was actually
the reason for his suicide. This statement of restricted possibility
about the correlation between “cause” and “effect”
is well known in social sciences. The reaction would perhaps also
have taken place if the suspected cause had not been present
(so-called counterfactuals).
- To
describe and to criticise such a situation – even using an
insulting word as a value judgment – has been regarded as
possible and (given a factual basis) not excessive in the framework
of a democratic society on the basis of freedom of expression,
especially in the exercise of journalistic freedom (compare
Oberschlick v. Austria (no. 2), judgment of 1 July 1997,
Reports of Judgments and Decisions 1997-IV, p. 1276, §§
33-34, where the Court qualified the clear insult “Trottel”
(idiot) as “part of the political discussion ... amount[ing] to
an opinion whose truth is not susceptible of proof”). Such an
assessment must be valid without bias for or against any particular
ideology or political camp.
- A
person affected by criticism who himself or herself has previously
gone to the public and expressed harsh criticism also, therefore, has
to tolerate harsh counter-criticism. This applies to the present
case, because the case has to take into account the whole context
(and not only the applicant's complaint). I cannot agree with the
majority's assessment that M.'s letter to the subscribers to the
newspaper Zur Zeit “overstepped acceptable limits,
because it in fact accused the applicant of acts tantamount to
criminal behaviour” (see paragraph 47 of the judgment). The
statement that a person had driven somebody else to commit suicide is
indeed a severe reproach – which nevertheless should be
possible in an open society; social pressure which induces somebody
to commit suicide is blameworthy, but by no means a basis for a
criminal charge or penalty. Therefore, it does not hold true that the
harsh criticism had to be understood as an accusation of criminal
behaviour. And if that is not true, the balancing of the values at
stake in the majority's opinion is not correct or adequate (according
to the Court's own principles).
- If
the content of a contribution to a debate of general interest (even
if it is rejected by the majority of society) is confined to a value
judgment about the conduct of a person in a public discussion, when
that person actively and of his/her free will initiated or became
involved in that discussion, the principle volenti non fit injuria
applies. State authorities cannot be blamed in such a situation –
as there is a sufficient factual basis – for placing greater
emphasis on freedom of expression than on the individual's right to
the protection of his or her reputation.
- To
sum up, I do not concur with the majority of the Court. The
aforementioned considerations lead me to the conclusion that the
domestic courts did not fail to protect the applicant's reputation
against interference by third persons, and therefore, in my opinion,
there has been no violation of the applicant's right to respect for
his private life under Article 8 of the Convention.
