EHRM, 02-11-2006, nr. 19710/02

The applicants' submissions concentrated on the necessity of the interference with their right to freedom of expression. They asserted in the first place that the article containing the incriminated statement contributed to a political debate concerning Mr Haider's style of leadership within the FPÖ and his way of treating opponents.

As to the criminal proceedings under the Media Act, the applicants contended that the courts had failed to see the impugned statement against its proper background, on which ‘der Standard’ had reported shortly before, namely the years of litigation between D. and Mr Haider as a result of which the latter had been ordered to retract false accusations made against D. via television broadcast. Instead of doing so Mr Haider and his lawyer had prepared a statement for the purpose of broadcasting which again contained defamatory statements. Moreover, the applicants had duly stated that Mr Haider had been convicted at first instance which implied that the conviction was not yet final.

In addition, the applicants maintained that the courts had refused to take evidence, namely to hear a number of witnesses, without giving sufficient reasons. They asserted that they had duly repeated their request for the hearing of witnesses at the hearing of 24 March 2000 and complained about the refusal of the taking of evidence in their appeal on points of law. Since the appellate court dismissed the latter it also dismissed the implied request to hear the witnesses at the appeal stage.

With regard to the civil proceedings, the applicants relied in essence on the same arguments. In addition they submitted that the approach of the civil courts which considered themselves bound by the judgment given in the criminal proceedings under the Media Act was in itself in breach of Article 10. It curtailed their possibility to forward any grounds of justification and prohibited the civil courts from carrying out a weighing of interests which would normally be required in this kind of civil proceedings.

The Government also limited their submissions to the necessity of the interference at issue. They conceded that, in a case like the present one, concerned as it was with the press exercising its role as ‘public watchdog’ and criticising a leading politician, the State's margin of appreciation was narrowly defined. However, the Austrian courts did not transgress their margin of appreciation in the present case.

In the proceedings under the Media Act the courts rightly considered the incriminated statement as an incorrect statement of fact. The applicants had failed to report that Mr Haider had only been convicted of attempted defamation. Instead they had conveyed the impression that he had actually ruined a person's reputation and prospects for the future. Moreover, the applicants had failed to make it clear that the conviction had not yet become final. In sum, the courts had correctly weighed the applicants' right to contribute to a political discussion against Mr Haider's interest in the protection of his reputation. Finally, the penalty imposed on the second applicant was also proportionate. It was a fine of about 1,000 euros (EUR) suspended on probation for a probationary period of one year.

As to the courts' refusal to hear certain witnesses, the Government asserted that the applicants had failed to request their hearing in due form. A global statement that all requests for the taking of evidence as submitted in writing were maintained was not sufficient. Parties were required to make an oral request which specified the topic on which the witness was to be heard. Even if the applicants had complied with the procedural requirements, the courts had rightly refused the taking of evidence since it was not relevant for the proceedings at issue.

As to the proceedings under the Civil Code the Government confirmed that the civil courts were bound by a decision of the criminal court under the Media Act, in line with the general principle that a person who has been finally convicted cannot plead in subsequent civil proceedings that he had not committed the offence at issue. Thus, the same considerations as set out above also applied in respect of the civil proceedings. Again, the measures imposed were proportionate in that they prohibited only one particular statement without preventing the applicants from expressing their opinion in any other way.

The present case concerns two sets of proceedings brought by Mr Haider against the applicants in respect of the article published by ‘der Standard’ on 9 October 1998. In the proceedings under the Media Act the first applicant was ordered to pay Mr Haider compensation and the second applicant was convicted of defamation and sentenced to a fine suspended on probation. In the civil proceedings the applicants were ordered to refrain from repeating the impugned statement, to retract it and to publish the judgment. It is undisputed that the courts' judgments in both sets of proceedings constituted an interference with the applicants' right to freedom of expression.

It is not in dispute either that the interference was ‘prescribed by law’ and served a legitimate aim, namely the protection of the rights and reputation of others.

The parties' argument concentrated on the necessity of the interference. As regards the general principles relating to the freedom of the press in the context of political criticism and the question of assessing the necessity of an interference with that freedom, 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 v. Austria (no. 39394/98, § 30, ECHR 2003-XI).

In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were ‘relevant and sufficient’ and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts' margin of appreciation. Moreover, the Court observes that the two sets of proceedings at issue are very closely linked since they related to the same set of facts and raised similar legal issues. It will therefore examine them together.

As it did in similar cases, the Court will take the following elements into account: the position of the applicants, the position of Mr Haider who brought the proceedings and the nature and subject matter of the article at issue (see, for instance, Scharsach and News Verlagsgesellschaft, cited above, § 31, and Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001-II).

The first applicant is the owner of one of the leading daily newspapers in Austria. The second applicant was at the material time its chief editor responsible for the internal politics section. In that connection the Court reiterates that the press, in order to play its vital role of ‘public watchdog’ has the duty 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, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233–34, § 37).

Mr Haider is a well-known politician, who was at the material time the leader of the Austrian Freedom Party. According to the Court's well-established case-law the limits of acceptable criticism are wider as regards a politician than as regards a private individual (see, for instance, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42).

The article at issue was a political commentary which criticised Mr Haider's style of leadership, accusing him of letting party members down when he saw fit while continuing to support others despite their conviction by a criminal court. It was in that context that the impugned statement referring to Mr Haider's conviction by a first instance court was made.

The Austrian courts considered the statement at issue ‘After all, Haider was convicted in criminal proceedings at first instance because he had ruined a person's good reputation and prospects for the future’ as a statement of fact. With the exception of the Vienna Court of Appeal in the preliminary injunction proceedings under the Civil Code (see above, paragraphs 22–23) they further considered that the truth of this statement had not been proven. They laid much emphasis on the fact that Mr Haider had only been convicted of attempted defamation and found that this fact did not allow to draw the conclusion that he had ruined a person's good reputation and perspectives for the future.

The Court is not convinced by the domestic courts' approach. It disregards the nature of the article as a political commentary and the connection with the previous article concerning Mr Haider's conviction which had been published by ‘der Standard’ a week before.

In the Court's view the impugned phrase contained a statement of fact and a value judgment. The first part of the phrase, referred to Mr Haider's conviction, thus mentioning a factual element, while its second part contained a value judgment namely the journalist's assessment that Mr Haider had ruined a person's reputation and prospects for the future. It is the Court's established case-law 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, cited above, § 43; De Haes and Gijsels, cited above, § 47; 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).

It therefore remains to be examined whether the statement of fact was true and whether it provided — possibly in connection with the previous article published in ‘der Standard’— a sufficient factual basis for the value judgment. The fact of Mr Haider's conviction is uncontested. It is true that the article itself did not mention any details concerning Mr Haider's conviction. It simply referred to his conviction at first instance without mentioning the offence of which he was convicted. However, the Court has accepted that the necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances (see, Feldek, cited above, § 86). The necessity to provide the facts underlying a value judgment is less stringent where these facts are already known to the general public (ibid.).

In the present case, ‘der Standard’ had reported a week before about Mr Haider's conviction of attempted defamation and had provided the background of this conviction. The article at issue had referred to years of litigation between Mr Haider and D. whose candidature for the post of President of the Audit Office had been hindered by Mr Haider by making false accusations against him. As a result of this litigation, Mr Haider had been ordered to retract his statements via television broadcast. The video-tape which he had prepared for the purpose of being broadcast had again contained defamatory statements. In these circumstances, the Court finds that there was a sufficient factual basis for the impugned statement. The Court considers that the public interest in receiving information on the personal credibility of a leading politician outweighed his interest in the protection of his reputation.

As regards the conviction of the second applicant in the proceedings under the Media Act, the Court notes that the Regional Court had acquitted her, finding that she had acted in good faith since she had been present in court when the judgment against Mr Haider had been read out and had gained the impression that he had ruined D.'s good reputation and perspectives for the future (see paragraph 13 above). In contrast, the Vienna Court of Appeal convicted her on the ground that, pursuant to Article 111 § 3 of the Criminal Code, the defence of good faith was not available in cases like the present one, in which a defamatory statement had been published in the media. In this connection the Court reiterates its case-law, according to which the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II, and Bladet Tromsø and Stensaas v. Norway[GC], no. 21980/93, § 65, ECHR 1999-II). In the present case, the second applicant had acted in good faith but was unable to plead that defence since it is excluded under Austrian law, where defamation is committed in the media.

Turning finally to the applicants' argument that the courts failed to take evidence proposed by them, the Court notes that the parties disagree as to whether or not the requests for the taking of evidence were made in due form. However, the Court is not required to examine this issue. It notes that the Vienna Court of Appeal in its judgment of 10 October 2001 did not dismiss the applicant's request on formal grounds but found that they were in any case irrelevant to the proceedings, since it followed from the text of the article at issue that the applicants had not accused Mr. Haider of having ruined D.'s reputation with regard to staff members of the Austrian Broadcasting Corporation. The Court agrees with this view. Having regard to the context in which the article was written Mr Haider was accused of having ruined D.'s reputation with regard to the general public in respect of his candidature for the post of President of the Audit Office.

In conclusion, the Court finds that the reasons adduced by the domestic courts were not ‘relevant and sufficient’ to justify the interference. Moreover, the Court is not convinced by the Government's argument that the sanctions imposed on the applicants were proportionate. In particular, as regards the second applicant what matters is not that she was sentenced to a relatively modest fine suspended on probation but that she was convicted at all (see Lopes Gomes da Silva v. Portugal, no. 37698/97, § 36, ECHR 2000-X).

It follows that the interference complained of was not ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention.

There has accordingly been a violation of Article 10 of the Convention.