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FIRST
SECTION
CASE OF
STANDARD VERLAGSGESELLSCHAFT MBH (no. 2)
v.
AUSTRIA
(Application
no. 37464/02)
JUDGMENT
STRASBOURG
22
February 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 Standard Verlagsgesellschaft mbH (no. 2) v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 1 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37464/02) 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 Standard
Verlagsgesellschaft mbH, a limited liability company with its
seat in Austria (“the applicant company”), on 19 July
2002.
- The
applicant company was represented by Ms M. Windhager, a lawyer
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 company alleged that it had been violated in its right to
freedom of expression under Article 10 of the Convention.
- By
a decision of 29 June 2006, the Court declared the application
admissible.
- Neither
the applicant company nor the Government filed further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is the owner of the daily newspaper “Der
Standard”.
A. The background of the case
- The
Region of Carinthia (Land Kärnten) is the majority
shareholder of the Carinthian Electricity Corporation (Kärntner
Elektrizitäts-Aktiengesellschaft - “the
KELAG”).
- On
16 June 1999 the KELAG invited all shareholders to the general
meeting on 9 July 1999. One item on the agenda was the dismissal and
re-election of the corporation's supervisory board (Aufsichtsrat).
- For
the meeting of the Carinthian Regional Government (Landesregierung)
of 6 July 1999, Mr Pfeifenberger, the official dealing with financial
matters at the material time, prepared a motion inviting the Regional
Government to nominate specific persons to the corporation's
supervisory board.
- He
retracted this motion before the meeting as, at the request of
Mr Haider, Regional Governor (Landeshauptmann) of
Carinthia, he had received a legal expert opinion issued by the
expert Mr Q. According to this opinion, the Region of Carinthia had
no right to nominate the members of the KELAG supervisory board as
the members had to be elected. The representative of the Region of
Carinthia could propose candidates and exercise the voting right in
the general meeting of the KELAG without a prior decision by the
Regional Government.
- Mr
Haider had further informed Mr Pfeifenberger that the Legal
Department dealing with constitutional matters at the Carinthian
Regional Government Office had approved this way of proceeding. Mr
Haider further commissioned an expert opinion by the Legal
Department. This opinion, issued on 2 August 1999, stated that an
interpretation of the relevant provisions did not lead to an
unequivocal result.
- In
the meantime, Mr Pfeifenberger – despite the protest of the
socialist members of the Regional Government – gave authority
to Mr Haider to represent the Region of Carinthia in the general
meeting of the KELAG. Mr Haider subsequently represented the Region
of Carinthia at the said general meeting on 9 July 1999 and exercised
the voting right without having previously obtained a decision by the
Regional Government.
- On 14 July 1999, at the request of the Austrian Social
Democratic Party (“the SPÖ”) Mr S, a professor of
law of the Graz University, issued a further expert opinion of some
seven pages concerning the question of “nomination of members
to the KELAG's supervisory board by the Regional Governor of
Carinthia”.
- This
expert opinion came to the conclusion that the election of the
supervisory board of the KELAG by the Regional Governor without a
previous decision by the Regional Government was not in accordance
with federal constitutional law, regional constitutional law and the
Regional Government's Rules of Procedure. The opinion finally
mentioned the possibility of impeachment of members of the Regional
Government before the Constitutional Court by majority vote of the
Regional Parliament (Landtag) under Article 142 of the Federal
Constitution (Bundes-Verfassungsgesetz) for having culpably
breached the law. The Constitutional Court's decision in impeachment
proceedings consisted of either the exoneration of the official in
question or a finding against him or her which implied dismissal of
the person from office. The possibility for the Constitutional Court
to limit its judgment in the event of minor infringements to a
finding that there has been a breach of the law would not exist in
the present case as impeachment had to be filed under Article 142 § 2
lit d which did not provide for this alternative.
B. The article at issue
- On
16 July 1999 the applicant company published an article on its front
page of “Der Standard” which read as follows:
“Haider has breached the Constitution
According
to an expert opinion commissioned by the SPÖ at the Graz
University, the Regional Governor Jörg Haider has committed a
'breach of law' when appointing the supervisory board of the KELAG.
His handling of the Regional Government's Rules of Procedure would be
'illicit, illegal and unconstitutional'. The ÖVP [Austrian
People's Party] nevertheless does not want to support an impeachment.
It invites Haider to correct the KELAG decisions concerning the
personnel, which the FPÖ [Austrian Freedom Party] categorical
refuses: 'We refuse to be blackmailed'.”
- The
article continued on page 8 under the same heading with the subtitle:
“Expert opinion of professor in Graz accuses the Regional
Governor of deliberate misguidance”. It stated as follows:
“The Carinthian Regional Governor, Jörg
Haider, by acting on his own when appointing the members of the KELAG
supervisory board, has clearly committed a 'breach of the laws and
the Constitution'. This is the conclusion reached by A.S [name in
full], professor at the Graz University, in his expert opinion on
constitutional matters which had been commissioned by the Carinthian
SPÖ. Haider, by acting on his own authority, has violated the
Carinthian Government's Rules of Procedure and has, thus, breached
the law and the Constitution. The expert opinion mentions as an
aggravating factor that Haider has 'deliberately mislead the Regional
Government and ignored the Regional Constitution and the Regional
Government's Rules of Procedure'. According to the expert opinion it
is therefore possible to institute impeachment proceedings against
Haider. If the Constitutional Court convicted Haider, he would be
threatened with dismissal from office. The SPÖ leader Helmut
Manzenreiter has now given Mr Haider an ultimatum: either the
supervisory board should be appointed afresh by the Regional
Government as a whole or there should be a tripartite agreement on
transforming Kelag into a holding company. Otherwise, the SPÖ
would institute impeachment proceedings against Mr Haider before the
elections to the National Assembly. Mr Manzenreiter also called on
the ÖVP not to 'cover up' Mr Haider's breach of the law. In the
Regional Parliament the FPÖ reacted vehemently to the report.
The leader of the FPÖ's parliamentary group, Martin Strutz,
announced that a second opinion would be commissioned. Mr Haider
himself could not hide his anxiety. He leaned back in a relaxed
fashion only when the leader of the ÖVP's parliamentary group,
Klaus Wutte, made clear that the ÖVP would not support his
impeachment. Although the ÖVP intends to await the findings of
an 'independent' expert opinion, Mr Wutte nonetheless hinted at the
party's strategy: 'Not punishment but rectification of Haider's
breach of the law.' In so doing, he both foiled his colleague Georg
Wurmitzer and confirmed the viewpoint that there is a 'tacit
coalition' between the ÖVP and the FPÖ.'
- The
article was followed by a further text in a small box headed “[The]
Constitution stands above stock corporation law” (Verfassung
steht über Aktienrecht). This text explained that Mr
Pfeifenberger had prepared an act of Government (Regierungsakt)
which Mr Haider had, however, retracted as being an “error”.
The expert opinion had found that this conduct amounted to deliberate
misguidance of the Regional Government. The article further stated
that the expert A.S. did not accept Mr Haider's reference to stock
corporation law.
C. Proceedings under the Media Act
18. On
29 July 1999 Mr Haider instituted proceedings for forfeiture
(Einziehung) of the article and publication of the judgment
under Section 33 of the Media Act (Mediengesetz) with the St.
Pölten Regional Court (Landesgericht).
- On
12 December 2000 the Regional Court found that the article at issue,
by stating that Mr Haider had deliberately mislead the Regional
Government and had acted in breach of the Carinthian Government's
Rule of Procedure and the Regional Constitution, fulfilled the
elements of the offence of defamation (üble Nachrede)
under Article 111 of the Criminal Code (Strafgesetzbuch). It,
therefore, ordered the applicant company to black out the impugned
statements in the issues still to be disseminated and the publication
of the judgment under sections 33 and 34 of the Media Act. It further
ordered the applicant company to pay the costs of Mr Haider's
counsel.
- At the trial the court heard the counsel of the
applicant company, Mr Haider and Mr Pfeifenberger. It
dismissed the applicant company's request to hear all other members
of the Regional Government as being irrelevant for the proceedings at
issue.
- The
court considered the statements that Mr Haider had breached the
Constitution, had deliberately mislead the Regional Government and
had acted in breach of the law as statements of fact for which the
applicant company had failed to supply sufficient proof. The court
noted that there was, in particular, nothing to indicate that Mr
Haider had deliberately misled the Regional Government which, in
itself, was a sufficient reason for the ordered forfeiture. The fact
whether or not Mr Haider had acted in breach of the Constitution was
a matter which had to be decided by the Constitutional Court.
- The
applicant company appealed against this judgment. It submitted inter
alia that the statements at issue were value judgments, based on
the facts established by the expert opinion of the professor of the
Graz University, and contributed to the discussion of a question of
public interest.
- On
3 December 2001 the Vienna Court of Appeal (Oberlandesgericht),
having the expert opinion of Mr S. before it as evidence, dismissed
the applicant's appeal. It noted that the expert opinion had to be
considered as an admissible legal assessment of uncontested facts.
The article at issue had, however, not simply reproduced the opinion
given by the expert but had used it for an independent attack on Mr
Haider's reputation. The court noted in this regard that the article
had not placed the expert opinion in its context, namely that of a
legal dispute, but had presented it as an irrevocable verdict on Mr
Haider. The court referred in particular to the wording of the
article's headings. It further noted that the article had not
published any comment of Mr Haider and had not mentioned the
existence of the opinion issued by the other expert Q. Furthermore,
the article contained statements which were not supported by the
expert opinion, namely that Mr Haider had deliberately misled the
Regional Government and the reference to the possible impeachment of
Mr Haider. The court noted in the latter regard that the expert
opinion had merely mentioned the abstract possibility of impeachment
of a member of the Regional Government who, in the opinion of the
majority of the members of the Regional Parliament, had culpably
breached the law. The court finally noted that the Regional Court's
order to black out the impugned statements did not replace but
complemented an order of forfeiture of the relevant issues. This
judgment was served on the applicant company's counsel on 21 January
2002.
D. Proceedings under the Civil Code
- On
4 December 2001 Mr Haider brought injunction proceedings under
Article 1330 of the Civil Code (Bürgerliches Gesetzbuch)
against the applicant company.
- On
19 June 2002 the Vienna Commercial Court (Handelsgericht),
referring to the judgments of the courts in the proceedings under the
Media Act, granted the injunction and ordered the applicant to revoke
the statements that Mr Haider, by appointing the members of the KELAG
supervisory board, had deliberately misled the Regional Government
and had acted in breach of the Regional Government's rules of
procedure and the Regional Constitution. It further ordered the
applicant company to pay the costs of Mr Haider's counsel.
- The
court dismissed the applicant company's argument that it could not be
held responsible for the shortcomings of the article at issue since
that article had been written by a journalist who was not trained in
law. The journalist had relied on press releases prepared by the
Socialist Party which summarised the expert opinion incorrectly. The
court found that the applicant company had not complied with its
obligation of journalistic diligence as it had failed to consult the
available expert opinion.
- On
20 November 2002 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant company's appeal. This decision was served on
the applicant company's counsel on 4 December 2002.
II. RELEVANT DOMESTIC LAW
- 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 been
defined in Article 111 of the Criminal Code (Strafgesetzbuch),
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.”
- Section
33 § 2 of the Media Act reads as follows:
“Forfeiture shall be ordered in separate
proceedings at the request of the public prosecutor or any other
person entitled to bring claims if a publication in the media
satisfies the objective definition of a criminal offence and if the
prosecution of a particular person cannot be secured or if conviction
of such person is impossible on grounds precluding punishment, has
not been requested or such a request has been withdrawn. If no
punishment can be imposed in case of the offender having proved the
truth, the defence of truth shall also be available to the owner
(publisher) of the media product in question being the interested
party ...”.
30. Section 34 of the
Media Act deals with the publication of a judgment
(Urteilsveröffentlichung). It states inter alia
that a criminal judgment concerning a media offence has, at the
request of the prosecution, to order the publication of those parts
of the judgment which are necessary to inform the public about the
offence and the conviction. At the request of the prosecution, the
publication of a judgment has to be ordered in separate proceedings,
if statements falling within the objective definition of an offence
have been made in the media and the prosecution of a specific person
is not possible.
- Section
1330 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) provides as follows:
“1. Anybody who, due to defamation,
suffered a damage or loss of profit, may claim compensation.
2. The same applies if anyone is
disseminating facts, which jeopardize another person's reputation,
gain or livelihood, the untruth of which was known or must have been
known to him. In this case there is also a right to claim a
revocation and the publication thereof...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the Austrian courts' decisions
infringed its right to freedom of expression under Article 10 of the
Convention which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The Government contested this complaint. While they
accepted that the above measures constituted an interference with the
applicant company's rights under Article 10 § 1
of the Convention, they argued, however, that the interference was
prescribed by law, pursued the legitimate aim of protecting
effectively the reputation or rights of others and was proportionate
to the aim pursued. The Government referred in this regard to the
domestic courts' findings which they considered relevant and
sufficient. The Government in particular pointed out that, while the
underlying expert opinion in itself basically was a value judgment,
the impugned article did not refer to the matter as a legal dispute
but built the expert opinion up to an irrevocable verdict on the
Carinthian Governor. Thus, the article did not mention the existence
of a counter-expert opinion. Moreover, as regards the distortion of
the expert opinion, the applicant company could not prove that it had
complied with its obligation to safeguard journalistic diligence as
it had relied on a press release prepared by a political party whose
views were known to be often contrary to those of the Carinthian
Governor without examining the truth behind these statements. The
Government finally argued that the interference was also
proportionate as the Austrian courts merely ordered the applicant
company to black out the impugned passages in the remaining issues of
“Der Standard” still to be disseminated and the
publication of the judgment.
- The
applicant company disputed these arguments. It contended that the
article at issue contributed to a debate of public interest which, in
the light of Mr Haider's constant confrontations with the
Constitution and its representatives, was all the more important. The
article contained true statements of fact and thereupon based value
judgments, namely statements concerning the legal classification of
Mr Haider's acts. The article correctly reflected the main
conclusions of the expert opinion which constituted a permissible
value judgment about Mr Haider's acts. The domestic courts falsely
found that the question whether there had been a breach of the
Constitution was only for the Constitutional Court to decide and had
not considered that this legal question finally remained
controversial. The domestic courts' and the Government's finding that
the article constituted an independent attack on Mr Haider's
reputation was not true as the article took account of Mr Haider's
position. The article explicitly referred to the announcement of
counter-expert opinions by FPÖ and ÖVP politicians. The
applicant company finally argued that it had complied with its
obligation of journalistic diligence as it had based the article at
issue, in addition to the press release, also on the expert opinion.
When reporting on issues of public interests, the press should be
able to rely on official reports without being obliged to conduct
independent research. In the present there had been sufficient
reasons to believe that the impugned statements were true.
- The
Court finds that the Austrian courts' decisions interfered with the
applicant company's right to freedom of expression under Article 10
of the Convention. The interference was prescribed by law, namely by
sections 33 and 34 of the Media Act, read in conjunction with
section 111 of the Criminal Code and Article 1330 of the Civil Code,
respectively, and pursued the legitimate aim of protecting the
reputation and rights 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 (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.
- Turning to the elements developed by the Court's
case-law of particular relevance to the present case, the Court
recalls the distinction between statements of fact and value
judgments. While the existence of facts can be demonstrated, the
truth of value judgments is not susceptible of proof (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; Oberschlick v. Austria (no. 2), judgment of 1 July 1997,
Reports 1997 IV, p. 1276, § 33). The Court further
notes that Article 10 of
the Convention does not guarantee a wholly unrestricted freedom of
expression even with respect to press coverage of matters of serious
public concern. By reason of the “duties and
responsibilities” inherent in the exercise of the freedom
of expression, 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. Furthermore, special
grounds are required before the media can be dispensed from their
ordinary obligation to verify factual statements that are defamatory
of private individuals. Whether such grounds exist depends in
particular on the nature and degree of defamation in question and the
extent to which the media can reasonably regard their sources as
reliable with respect to the allegations (see, as a recent authority,
Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §
78, ECHR 2004 ..., with further references).
- In
the present case, the domestic courts when balancing the conflicting
interests, i.e. the applicant company's right to freedom of
expression on the one hand, and Mr Haider's right to protection of
reputation on the other, found in favour of Mr Haider. They pointed
out that the applicant company had used Mr S' expert opinion on Mr
Haider's acting for its own purposes, namely an independent attack on
the latter's reputation. They referred in this regard, firstly, to
the wording of the article's headings and to the fact that the
article had not published any comment of Mr Haider and had not
mentioned the existence of another, more favourable expert opinion.
They further noted that the article contained statements which were
not supported by the expert opinion.
- The
Court observes that the article at issue dealt with the conduct of Mr
Haider, a leading politician, in the context of the re-appointment of
the supervisory board of the KELAG, a partly public owned
institution. This subject being of considerable public and political
interest, the most careful scrutiny on the part of the Court is
called for when, as in the present case, the measures taken by the
national authorities are capable of discouraging the participation of
a daily newspaper in such a debate. In this context the Court further
recalls that freedom of the press affords the public one of the means
of discovering and forming an opinion of the ideas and attitudes of
their political leaders, and also covers possible recourse to a
degree of exaggeration, or even provocation. The Court, therefore,
considers the argument that the applicant company's report was
one-sided and partial as it had not been placed sufficiently in
context in itself not relevant to justify any restrictions on the
applicant company's freedom of expression. However, the domestic
courts further emphasised that the article wrongly reproduced the
quoted expert opinion.
- The
Court notes in this regard that the article repeatedly cited the
expert opinion as having stated that Mr Haider had deliberately
deceived the Regional Government. It referred to this information in
the article's heading (“Expert opinion of professor in Graz
accuses the Regional Governor of deliberate misguidance”),
in the article's text (“...the expert opinion mentions as an
aggravating factor that Haider has 'deliberately mislead the Regional
Government and ignored the Regional Constitution and the Regional
Government's Rules of Procedure' ”) and in the small box
annexed to the article. The Court notes that the expert opinion at
issue did not contain any such allegations and, thus, adheres to the
domestic courts' findings that the above quotations were defamatory
as they amounted to false statements of fact. The Court further finds
that these statements, suggesting that Mr Haider had acted illegally
against his better knowledge, constituted serious accusations against
the latter.
- The
applicant company contended that it could not be held responsible for
these shortcomings of the article as it could reasonably rely on a
press release prepared by the Socialist Party which summarised the
expert opinion incorrectly. It referred in this regard to the Court's
finding in a previous case that the press should normally be
entitled, when contributing to public debate on matters of legitimate
concern, to rely on the contents of official reports without having
to undertake independent research. (see Bladet Tromsø and
Stensaas v. Norway [GC], no. 21980/93, § 68, ECHR
1999 III). The Court, like the domestic authorities, is not
convinced by this argument. It has serious doubts whether the
statements of political opponents of Mr Haider can be compared to the
official report drawn up by a Government appointed expert in the
Bladet Tromsø case. Furthermore, unlike in that case,
the applicant company in the present case did not refer to the
underlying allegedly incorrect source, namely the press release, but
expressly quoted the expert opinion. The Court notes that this
opinion of some seven pages was available to the applicant company.
Having regard to the seriousness of the accusation against Mr Haider,
the Court finds that the applicant company should have consulted this
opinion itself in order to comply with the obligation of journalistic
diligence instead of relying without any further research on the
Socialist Party's press release.
- Having
regard to these circumstances, the Court finds that the domestic
courts' reasoning was “relevant and sufficient”.
Considering further that no penalties were imposed on the applicant
company, but that the courts ordered, in one set of the proceedings,
the forfeiture of the remaining stocks of the relevant issues of “Der
Standard” and the publication of the judgment and, in the other
set of proceedings, the revocation of the untrue statements of fact
and the other statements made in their immediate context, the Court
finds that the interference was also proportionate. These measures
did not prevent the applicant company from discussing the subject
matter in any other way.
- In
sum, the interference complained of can be said to have been
“necessary in a democratic society” for the protection of
the reputation and rights of others. It follows that there has been
no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
Holds
by four votes to three that there has been no violation of Article 10
of the Convention.
Done in English, and notified in writing on 22 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of Mr
Rozakis, Mrs Vajić and Mr Spielmann is annexed to this judgment.
C.L.R.
S.N.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, VAJIĆ
AND SPIELMANN
- We
regret that we are unable to share the conclusion of the majority
that there has been no violation of Article 10 of the Convention.
According to the traditional case-law of the Court, there is little
scope under Article 10 §
2 of the Convention for restrictions on political speech or on debate
on questions of public interest (see Sürek v. Turkey (no.
1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover,
the limits of acceptable criticism are wider as regards a politician
as such than as regards a private individual. Unlike the latter, the
former inevitably and knowingly lays himself open to close scrutiny
of his words and deeds by journalists and the public at large, and he
must consequently display a greater degree of tolerance (see Lingens
v. Austria,
judgment of 8 July 1986, Series A no. 103, p. 26, §
42, and Incal v. Turkey, judgment of 9 June 1998,
Reports 1998-IV, p. 1567, § 54).
- In
the present case the impugned article dealt with the conduct of
Mr Haider, a leading politician, in the context of the
re-election of the supervisory board of the KELAG, a partly public
owned institution. The article thus clearly concerned a political
debate on matters of general interest, an area in which, the Court
reiterates, restrictions on the freedom of expression should be
interpreted narrowly.
- The
domestic courts found that the applicant company had not simply
reproduced the expert opinion but used it for its own purposes,
namely an independent attack on Mr Haider's reputation. They referred
in this regard, firstly, to the wording of the article's headings and
to the fact that the article had not published any comment by Mr
Haider and had not mentioned the existence of another, more
favourable expert opinion. They further noted that the article
contained statements which were not supported by the expert opinion.
- Having
regard to the circumstances described in paragraphs 39 to 41 of the
judgment, the majority found that the domestic courts' reasoning was
“relevant and sufficient”, that no penalties had been
imposed on the applicant company, but that, in one set of the
proceedings, the courts had ordered the forfeiture of the remaining
stocks of the relevant issues of “Der Standard”
and the publication of the judgment and, in the other set of
proceedings, the revocation of the untrue statements of fact and
other statements made in their immediate context. On that basis, the
majority found that the interference had also been proportionate and
that these measures had not prevented the applicant company from
discussing the subject matter in any other way (paragraph 42 of the
judgment).
Consequently the majority arrived at the conclusion that the
interference complained of could be said to have been “necessary
in a democratic society” for the protection of the reputation
and rights of others (paragraph 43 of the judgment).
- We
are not convinced by this reasoning. Admittedly, the article was
presented in an abridged and one-sided manner, leaving aside details
which would have shown Mr Haider's conduct in a more favourable
light. However, it should be reiterated that journalistic freedom
also covers possible recourse to a degree of exaggeration, or even
provocation (see, amongst many other authorities, Prager and
Oberschlick v. Austria, judgment of 26 April 1995, Series A
no. 313, p. 19, § 38). In this context, we further
consider that articles in the press are naturally shaped by political
convictions and should not be subject to requirements of
comprehensive scientific essays. Against this background, the
article's statement that impeachment of Mr Haider was possible
also appears to be within the limit of acceptable interpretation of
the expert opinion which had mentioned this option in the abstract.
- Certainly,
we also note that the article's statement that Mr Haider had acted
deliberately was not in fact supported by the expert opinion.
However, this statement was based on an incorrect press release
issued by the Socialist Party. Therefore we are of the opinion that
the applicant company was entitled to rely on the contents of that
release (see, mutatis mutandis, Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 68,
ECHR 1999 III). We note in this regard that press releases
constitute an important source of information for the media.
Furthermore, in the present case the Socialist Party had commissioned
the expert opinion and it thus appears only natural that this party
summarised and presented it to the public. We note finally that the
applicant company's misunderstanding of the expert opinion could
easily have been rectified if Mr Haider had requested the applicant
company to publish a counter-statement. We are not convinced that in
a case like the present one the immediate recourse to the Media Act
and civil proceedings against the journalists constituted a
proportionate response. On the contrary, alternative methods for
resolving disputes, such as publication of a counter-statement,
should be favoured at least as a first step in such a case.
- Having regard to the foregoing, we consider that the
standards applied by the Austrian courts were not compatible with the
principles embodied in Article 10
and that the domestic courts did not adduce “relevant and
sufficient” reasons to justify the interference at issue.
Bearing in mind that there is little scope under Article 10 § 2
of the Convention for restrictions on debate on questions of public
interest, we find that the domestic courts overstepped the
narrow margin of appreciation accorded to Member States, and that the
interference was disproportionate to the aim pursued and was thus not
“necessary in a democratic society”.
- We
cannot accept that the limited nature of the interference, namely,
the order for forfeiture, the publication of the judgment and the
order to revoke certain statements in the article, is decisive; what
is of greater importance is that the domestic courts restricted the
applicant's freedom of expression while relying on reasons which
cannot be regarded as sufficient and relevant in view of the public
debate that took place. They therefore went beyond what could be
considered as a “necessary” restriction on the
applicant's freedom of expression.
- In conclusion, we find that there has been a violation
of Article 10 of the
Convention.
