Defamation laws are generally accepted in order to protect the reputation of individuals. In many countries, however, defamation laws are often abused of and have become a significant obstacle to the free flow of information and ideas. The main issue that supervisory bodies and courts face in defamation cases is how to on the one hand protect the reputation of individuals while on the other hand upholding the fundamental right to freedom of expression.
In the following case, Scharsach and News Verlagsgesellschaft v. Austria , the applicants were Hans-Henning Scharsach, an Austrian journalist, and the News Verlagsgesellschaft mbH company, the owner and publisher of the weekly newspaper News. In 1995 News published an article entitled‘‘Brown instead of black and red?’ in which Mr Scharsach explained why he was opposed to the possibility of a government coalition including the Austrian Freedom Party (FPÖ), led by Jörg Haider. The article criticised members of the FPÖ who had not been able to dissociate themselves from the extreme right, stated that ‘old closet Nazis’ who had left the party in the 1980s had returned under Haider and went on to mention a number of persons by name, including a Mrs Rosenkrantz. At the time Mrs Rosenkrantz, a politician, was a member of the Lower Austria Regional Parliament and deputy chair of the Lower Austria regional branch of the FPÖ. She later became a member of the Austrian Parliament and chair of the Lower Austria regional branch of the FPÖ. Her husband is a well-known right-wing politician and publisher of the newspaper Fakten, which is considered to be on the extreme right. Mrs Rosenkrantz brought criminal proceedings for defamation against Mr Scharsach and an action for damages against News Verlagsgesellschaft mbH. On 21 June 1998 the St Pölten Regional Court found Mr Scharsach guilty of defamation and ordered him to pay a large fine. Under the Media Act, News Verlagsgesellschaft mbH was ordered to pay compensation to the complainant. The Regional Court found that the article insinuated that Mrs Rosenkranz was engaged in clandestine neo-Nazi activities but had not proved that that was the case. The applicants appealed unsuccessfully. The applicants complained before the European Court of Human Rights that the judgement against them had infringed their right to freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights.
European Court of Human Rights
Application No. 39394/98
Judgement of 13 November 2003
Keywords: expression – defamation –rights or reputation of others
THE FINDINGS OF THE COURT
35. As regards the qualification of the impugned statement by the Austrian courts, the Court observes that they did not accept the applicants’ argument that the statement at issue was a value judgment, but considered it to be a statement of fact, insinuating clandestine neo-Nazi activities by Mrs Rosenkranz which had not been proved. In the Austrian courts’ view, belonging to such a circle of persons meant having a contemptible character and behaving in a manner contrary to honour or morality. The passage at issue had therefore defamed Mrs Rosenkranz.
36. The Court considers that the reasons given by the Austrian courts were “relevant” to justify the interference complained of. It remains to be examined whether the reasons adduced were also “sufficient” within the meaning of Article 10§ 2.
37. The Court observes that the article was written in a political context, namely when a possible coalition government including the FPÖ was being mooted, and that it expressed the first applicant’s view that such a coalition government was not desirable. The term “closet Nazi” was used in connection with a passage criticising FPÖ politicians, amongst them Mrs Rosenkranz, for failure to dissociate themselves from the extreme right. Moreover, the Court considers unconvincing the Regional Court’s finding that a wife could not be expected to criticise her husband in public, as the statement in the present case clearly addressed Mrs Rosenkranz as a politician and public figure, at the material time, as a member of the Lower Austria Regional Parliament and deputy chairperson of the Lower Austria regional branch of the FPÖ, in respect of whom the limits of acceptable criticism are wider than for a private individual [?]. The Court thus finds that the Austrian courts failed to take sufficient account of the political context in which the impugned term was used when assessing its meaning.
38. Considering that Mrs Rosenkranz’s name in the article in question was mentioned together with other FPÖ politicians in the phrase criticising their failure to dissociate themselves from the extreme right, i.e. to take a stand against extreme-right positions, the Court considers that the term “closet Nazi”, which appears in inverted commas in the article, taken in its context, was to be understood in the sense given to it by Mr Steger who had first used this expression in the political debate in his party, namely describing a person who had an ambiguous relation to National Socialist ideas [?].
39. Further, the Court observes that much of the parties’ arguments turn around the assessment whether the term “closet Nazi” was a statement of fact or a value judgment, and that the domestic courts, considering it to be a statement of fact, had never examined the question whether it could be considered as a value judgment. The Court notes in this respect that the assessment whether a certain statement constitutes a value judgment or a statement of fact might in many cases be difficult. However, since under the Court’s case-law a value judgment must be based on sufficient facts in order to constitute a fair comment under Article 10 [?], their difference finally lies in the degree of factual proof, which has to be established [?].
40. The Court accedes to the domestic courts’ finding that there is no indication in the present case that Mrs Rosenkranz herself is a neo-Nazi. However, contrary to the domestic courts’ position, the Court considers that the impugned statement, taken in its context, is not a statement of fact but has to be understood as a permissible value judgment. Mrs Rosenkranz is the wife of a well-known right-wing politician, who is the editor of a magazine considered to be extreme right-wing. This is an element which in itself does not constitute a sufficient factual basis, but she is a politician as well, has never publicly dissociated herself from her husband’s political views but has criticised the Prohibition Act, which bans National Socialist activities, in public statements. In this context it is to be noted that the essence of the impugned article was exactly the reproach that FPÖ politicians failed to dissociate themselves clearly from the extreme-right. Therefore the body of facts available constituted a sufficient factual basis for the contested statement, understood in the above sense, i.e. that Mrs Rosenkranz’s stand towards extreme right political positions was at the least unclear. The Court considers that the applicants published what may be considered to have been their fair comment, namely the first applicant’s personal political analysis of the Austrian political scene. Therefore his opinion was a value judgment on an important matter of public interest.
41. In respect of the Government’s argument that any allegation that a person has an ambiguous relation to National Socialism constitutes a massive reproach in Austria coming close to a charge of criminal behaviour under the Prohibition Act, the Court refers to the case of Wabl v. Austria (no. 24773/94,§ 41, 21 March 2000), in which the Court acknowledged that the special connotation of the term “Nazi” in Austria, inter alia, justified the interference under Article 10§ 2 of the Convention. Unlike the Wabl case, the interference in the present case was not an injunction issued under civil law, prohibiting the repetition of a particular statement, but a criminal conviction for the first applicant and a fine for the applicant company.
42. The Court further considers that use of the term “Nazi” does not automatically justify a conviction for defamation on the ground of its attached special stigma. The Court reiterates in this context that the degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular when expressing his opinion in the form of a value judgment [?]. Therefore the Court is not convinced by the Regional Court’s reasoning that Mr Rosenkranz had so far not been convicted of contravening the Prohibition Act in response to Mrs Rosenkranz’s statement that she saw nothing immoral in her husband’s political activities. The standards applied when assessing someone’s political activities under the aspect of morality are different from those required for establishing an offence under criminal law.
43. Moreover, the Court observes that in the Wabl case the expression “Nazi” was used without any connection with the underlying debate, while in the present case it was used precisely in the context of the allegation that certain politicians of the FPÖ had failed to dissociate themselves from the extreme right.
44. Considering on the one hand that Mrs Rosenkranz is a politician and, on the other, the role of a journalist and the press to impart information and ideas on matters of public interest, even those that may offend, shock or disturb, the use of the term “closet Nazi” did not exceed what may be considered acceptable in the circumstances of the present case.
45. In conclusion, the Court finds 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 “sufficient” reasons to justify the interference at issue, namely the first applicant’s conviction for defamation and the imposition of a fine on the applicant company for having made the critical statement in question. Therefore, having in mind that there is little scope under Article 10§ 2 of the Convention for restrictions on debate on questions of public interest, the Court finds that the domestic courts overstepped the narrow margin of appreciation afforded to Member States, and that the interference was disproportionate to the aim pursued and was thus not “necessary in a democratic society”.
Accordingly, there has been a violation of Article 10 of the Convention.
Additional related cases: Roemen and Schmit v. Luxembourg , Application No. 51772/99, Judgement of 25 February 2003 and Garaudy v. France , Application No. 65831/01, Judgement of 7 July 2003.
The European Court and Commission have found in related cases that ‘public interest’ and/or ‘public debate’ are decisive factors when dealing with defamation issues. In their discussions of what activities and publications fall under the protection of Article 10, the Commission and Court consider the degree to which a given expression serves a function in general public life. Thus, in Barthold v. Germany (Application No. 8734/79, Judgement of 25 May 1988, para.27), the Court cited the ‘imparting of information on a topic of general interest’ and the contribution ‘to public debate on topics affecting the life of the community’ as important factors in arriving at their judgement.
In Lingens v. Austria (Application No. 9815/82, Judgement of 8 July 1986), the applicant, an editor of a magazine, published two articles criticising the then Chancellor of Austria and questioning his suitability to exercise political power. The Chancellor then brought two private defamation actions against the applicant, both of which were successful. The applicant claimed that the decisions of the Austrian courts infringed his freedom of expression under Article 10. The Court agreed, noting that:
Freedom of the press [?] affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
The limits of acceptable criticism are accordingly 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 every word and deed by both journalists and the public at large. . .. Article 10 paragraph 2 enables the reputation of others . . . to be protected, and this protection extends to politicians too . . . but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.
The Court criticised the Austrian defamation law for placing the burden of proof on the accused to establish the truth of his statements, holding that this could in itself constitute a violation of Article 10 and stated that:
[A] careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof [?].
[Under Austrian law] journalists in a case such as this cannot escape conviction [?] unless they can prove the truth of their statements. [?]
As regards value-judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention.
The Court also noted that the Government’s application of sanctions against a journalist who criticised a political figure:
[?]“amounted to a kind of censure, which would be likely to discourage him from making criticisms [?] in future[?]. In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog.
In Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda, ConstitutionalRights Project v. Nigeria (Communication Nos. 128/94 and 130/94, Twelfth Activity Report 1998-1999, Annex V), the African Commission argues that persons with highly visible public roles necessarily face a higher degree of criticism than private persons:
74. The only person whose reputation was perhaps tarnished by the article was the head of state. However, in the lack of evidence to the contrary, it should be assumed that criticism of the government does not constitute an attack on the personal reputation of the head of state. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether.
75. It is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security. If the government thought that this particular article represented merely an insult towards it or the head of state, a libel action would have been more appropriate than the seizure of the whole edition of the magazine before publication. The seizure of the TELL therefore amounts to a violation of Article 9.2.