OAS » IACHR » Special Rapporteurship for Freedom of Expression » 4 - Chapter III - Jurisprudence (continued)

Freedom of Expression

4 - Chapter III - Jurisprudence (continued)

c)      Defamation

 

38.       This section is concerned with cases in which defamation proceedings were brought against the complainants for allegedly damaging the reputation of another person or persons as a result of the exercise of the right to freedom of expression.  The European jurisprudence and the U.S. jurisprudence share the principle of a distinction between the private person and the public person, the latter being expected to show a greater degree of tolerance when it comes to public scrutiny.  The inter-American system has sustained that defamation laws can give way to abuse, with the result of the right to freedom of expression being restricted.  In the cases below, the European Court weighs the interest of the reputation of the individual subject to public scrutiny against the importance of the right to freedom of expression and information.  In some of these cases, the allegedly defamed parties are public officials or public persons, while in others, they are private individuals.

 

i)          Lingens v. Austria

 

39.       In the 1986 case of Lingens v. Austria,[26] the Court decided unanimously that a violation of Article 10 of the European Convention had taken place.  The applicant, a journalist and editor of the Viennamagazine Profil, published two articles discussing the participation of Austrians in atrocities committed during the Second World War.  The articles had appeared after a general election.  It had been expected that the retiring Austrian Chancellor would have to form a coalition with the party of Mr. Peter in order to stay in power.  However, very shortly after the elections, revelations had been made about Mr. Peter's Nazi past.  The retiring Chancellor defended Mr. Peter and attacked his detractor, whose activities he described as “mafia methods.”  The applicant’s articles sharply criticized the retiring Chancellor for protecting former Nazis, using the expressions “basest opportunism”, “immoral” and “undignified” to describe his attitude.  The retiring Chancellor then instituted private proceedings for defamation, and the Vienna Regional Court, holding that the retiring Chancellor had been criticized in his private capacity, fined the applicant 20,000 Schillings.  On appeal, the fine was reduced to 15,000 Schillings.

 

40.       The Court stressed that the press has an important role to play in political debate, and established that the principles of acceptable criticism are wider for a “public” person than for a “private” person:

 

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.

 

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, and must consequently display a greater degree of tolerance.  No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others -that is to say, of all individuals- to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.[27]

 

41.       In considering whether the restriction was "necessary in a democratic society," the Court reached a negative conclusion, and found that the fine imposed on the applicant constituted a violation of the right to freedom of expression.  In reaching this conclusion, the Court noted that the applicant had used the impugned expressions to criticize the Chancellor’s attitude as a politician towards the position of former Nazis in Austrian society.  Therefore, the Court esteemed that the applicant had criticized the Chancellor in his public functioning and not in his private capacity.  Furthermore, the Court pointed out that the remarks had been made against the background of a post-election controversy.  The Court also noted that the facts on which the applicant had based his articles were undisputed, and that the applicant had been fined for his use of strong words to describe the retiring Chancellor’s attitude.  In such cases, the Court held 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.

 

(...)

 

[A requirement of proof with regard to value-judgments] infringes freedom of opinion itself, which is a fundamental part of the right.[28]

 

ii)         Barfod v. Denmark

 

42.       In the 1989 case of Barfod v. Denmark[29], the Greenland Local Government decided to introduce taxation of Danish nationals working on United States bases in Greenland.  A number of individuals challenged this decision, which found for the local government in a 2-1 decision.  Two lay judges (employees of the local government) found for the government, and one professional judge found for the plaintiffs.  The applicant wrote a newspaper article in which he expressed the opinion that the two lay judges should have been disqualified for conflict of interest.  He questioned their ability and power to decide impartially in a case brought against their employer, the Local Government, and suggested that by deciding in its favor the lay judges "did their duty".  The professional High Court judge considered that this last remark about the two lay judges was of a kind which might damage their reputation in the eyes of the public and hence generally impair confidence in the legal system, and imposed a fine on the applicant pursuant to the Greenland Penal Code.

 

43.       In the Barfod case, the Court considered that the government interfered with the applicant's freedom of expression to protect the reputation of others and indirectly to maintain the authority and impartiality of the judiciary.  In determining whether the interference was proportionate and therefore necessary in a democratic society, the Court emphasized that "proportionality implies that the pursuit of the aims mentioned in [Article 10(2)] has to be weighed against the value of open discussion of topics of public concern."  The Court underscored that in arriving at a fair balance between these two interests, it must consider the importance of not discouraging the public from expressing their opinions on issues regarding the public interest because of their fear of criminal or other sanctions. In the instant action, the Court noted that the article in question involved two elements: 1) a criticism of the composition of the court; and 2) a statement inferring that the lay judges cast their votes as local government employees and not as independent and impartial judges.  The Court stated that the interference addressed the second element.  The Court concluded that the interference was not aimed at restricting the applicant's right to criticize publicly the composition of the domestic court.  The Court placed emphasis on the fact that the applicant provided no evidence that the judges' decisions were affected by their status as government employees.  Moreover, the Court contended that the state's legitimate interest in protecting the reputation of the judges did not conflict with the applicant's right to engage in public debate about the composition of the domestic court that presided over the tax case.  Rather than viewing the subject of the applicant's personal criticism of the judges as part of the political debate, the Court concluded that the accusations were defamatory, capable of adversely affecting the judges' public image, and unsupported by any evidence.  The Court concluded that the political context in which the tax case was brought was irrelevant to the proportionality issue. The Court concluded that there was no violation of Article 10.

 

iii)         Castells v. Spain

 

44.       In the 1992 case of Castells v. Spain,[30] the Court decided that a violation of the right to freedom of expression had been committed.  The applicant, an opposition member of Parliament, published an article complaining of inactivity on the part of the authorities with regard to numerous attacks and murders that occurred in the Basque Country.  The article further alleged that the police colluded with the guilty parties and inferred that the government was responsible.  Criminal proceedings were instituted against the applicant for insulting the government, his parliamentary immunity was withdrawn, and he was convicted and sentenced to conditional imprisonment.

 

45.       The Court found that an interference had occurred that pursued the legitimate aims of protecting the reputation of others and preventing disorder.  In determining whether the interference was necessary in a democratic society, the Court reiterated that Article 10 protects ideas that shock, offend, or disturb.  The Court additionally maintained that freedom of expression is particularly important for elected representatives, as they defend the interests of their constituents.  Therefore, the Court stated that it would closely scrutinize restrictions against a member of Parliament.  The Court also underscored the importance of the press in a democratic society, stating that freedom of the press provides members of the public with one of the best means of discovering the ideas and opinions of their political leaders.

 

46.       In applying these principles to the facts at hand, the Court recognized that the applicant denounced the impunity enjoyed by the perpetrators of several attacks in Basque Country.  According to the Court, this information was of great interest to public opinion.  Additionally, the Court noted that the applicant made serious accusations against the government.  Nonetheless, the Court pointed out that the limits of permissible criticism are wider with respect to the government than in relation to private citizens or politicians.  The Court further noted that the dominant position the government occupies makes it necessary for it to display restraint in imposing criminal penalties, particularly when other means are available for replying to unjustified attacks and criticisms.  The Court emphasized, however, that as guarantors of public order, a state may impose criminal measures that are "intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith."  Furthermore, the Court gave significant weight to the fact that the domestic court did not admit evidence demonstrating the truth of the applicants' statements.  The Court concluded that the interference with the applicant's freedom of expression was not necessary in a democratic society.[31]

 

iv)        De Haes and Gijsels v. Belgium

 

47.       In 1997, the Court studied the case of De Haes and Gijsels v. Belgium.[32]  The applicants were the editor and a journalist of a weekly magazine.  They published five articles criticizing judges in a divorce suit, for awarding custody of children to Mr. X, a self-confessed Nazi, who had been the subject of criminal proceedings for incest and abuse of his children.  The articles accused the judges of sharing the father’s political sympathies and based their criticisms on medical reports that showed that the children had returned from visits with their father with evidence of having been raped.  The judges and advocate-general instituted civil proceedings for defamation against the applicants. Nominal damages were awarded and an order was made requiring the applicants to have the judgment published in the applicants’ magazine and to pay for it to be published in six other newspapers.  They claimed a violation of the right to freedom of expression.

 

48.       The Court pointed out that in a criminal defamation case initiated by Mr. X against family members who filed a criminal complaint against Mr. X for incest, a domestic court found that it had no reason to doubt the family members' allegations and acquitted the defendants.  Based on this information, the Court concluded that the applicants cannot be accused of having failed in their professional obligations by publishing what they learned about the case.  The Court reiterated that the press has a duty to report on matters important to the public interest, particularly when such matters involve very serious allegations, such as the abuse of young children and the functioning of the judicial system.  In this respect, the Court noted that the applicants stated in one of the articles: "It is not for the press to usurp the role of the judiciary, but in this outrageous case it is impossible and unthinkable that we should remain silent."

 

49.       The European Court additionally took notice of the fact that the advocate-general who brought the proceedings in the De Haes Case[33] did not cast doubt on the information published about the fate of Mr. X's children, except for the statement that the case in question had been withdrawn from the domestic courts.  In the Court's view, this last fact, in comparison with the articles as a whole, and the fact that the applicants mentioned this, cannot raise doubt as to the reliability of the journalists' work.

 

50.       Furthermore, the Court noted that the government accused the applicants of making personal attacks on the judges and advocate-general that were defamatory and amounted to an attack on their honor.  The government claimed that the applicants grossly infringed upon the judges' private life by accusing them of having extreme right-wing sympathies.  A domestic court held that the applicants made unproven statements about the private lives of the advocate-general and the judges.  In the Court's view, there is an important difference between facts and value judgments.  Specifically, the existence of facts may be demonstrated, while the truth of value judgments may not be proven.  The Court also pointed out that based on the information the applicants gathered regarding the political sympathies of the judges, such information could indicate that their sympathies were relevant to the issues at hand.  The Court stated that Article 10 protects ideas that tend to shock, offend, or disturb.  The Court added that "journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation."  Moreover, in evaluating the context surrounding the instant action, the Court considered that the accusations amounted to an opinion, the truth of which could not be proven.  The Court considered that the opinion in this case was not excessive.  Although the Court deemed the comments to be highly critical, they were proportionate to the "stir and indignation" caused by the matters of the articles.  Taking into consideration the seriousness of the circumstances and issues at stake, the interference was not necessary.  The Court considered, however, that the interference was necessary only insofar as it targeted the mention of the political tendencies of one judge's father.  Because the interference was not necessary with respect to certain elements of the case, the Court held that the state violated Article 10.

 

v)         Bladet Tromsø and Stensaas v. Norway

 

51.       In the 1999 case of Bladet Tromsø and Stensaas v. Norway,[34] the Court esteemed that there had been a violation of the right to freedom of expression.  The applicants were a company that published a newspaper and the paper's editor.  The paper published articles based on the findings of an officially appointed inspector who traveled aboard a seal-hunting ship.  The report alleged that seal hunters acted illegally by failing to adhere to regulations.  The report was temporarily exempted from publication by the Ministry of Fisheries because named individuals were accused of criminal conduct.  Following the institution of defamation proceedings by the crew members against the applicants, certain statements were declared to be defamatory and accordingly null and void.  The applicants were ordered to pay compensation to the crew members.

 

52.       The European Court considered that the State's reasons for the interference were relevant to the legitimate aim of protecting the reputation or rights of the subjects of the article.  In determining whether those reasons were sufficient, the Court mentioned that it must not consider the articles in isolation.  Rather, the Court emphasized that it must consider the background against which the statements were made.  In this respect, the Court indicated that Article 10 protects ideas that offend, shock, or disturb.  Additionally, the Court commented that the mass media's responsibility is to impart information and ideas concerning matters of public interest.  In evaluating the facts of the case in light of the larger context at hand, the Court concluded that the purpose of the articles was not to accuse individuals of committing illegal acts; to the contrary, because the newspaper published other views pertaining to this issue, the articles were published to present the views of one side of an ongoing debate.

 

53.       The Court also mentioned that careful scrutiny on part of the Court is necessary when the measures imposed by the State are capable of discouraging the participation of the press in debates over matters of legitimate public concern.  The Court nonetheless maintained that the exercise of freedom of the press carries with it duties and responsibilities, namely the duty to act in good faith to provide accurate and reliable information in accordance with the ethics of journalism.  Finally, in determining whether the newspaper had a duty to verify the findings of the report to which it cited, the Court considered two factors: 1) the nature and degree of the defamation; and 2) the extent to which the newspaper could reasonably regard the Lindberg report as reliable with respect to the allegations in question.  With respect to the first inquiry, the Court considered that although the allegations implied reprehensible conduct, such allegations were not particularly serious.  Furthermore, the Court considered that although other statements were relatively serious, the potential adverse effect on the subjects of the article was attenuated by several factors, including the fact that the criticism was not aimed at all the crew members or any specific crew member.  In determining the trustworthiness of the report, the Court first mentioned that the press should normally be entitled to rely on the contents of official reports without corroborating its facts with independent research.  Additionally, the Court pointed out that at the time of publication of the newspaper article, the Ministry of Fisheries, which commissioned the report, did not express any doubts as to the validity of the report or the competence of the author.  The Court also found that the newspaper took actions to protect the reputations of individual seal hunters, and that the paper could reasonably rely on the official report without having to conduct its own investigation.  The Court therefore considered that the newspaper acted in good faith.  The Court concluded that the crew members' interest in protecting their reputations was not sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local, national, and international interest.  Therefore, in the Court's view, the reasons relied on by the State were not sufficient to show that the interference was necessary in a democratic society.  Moreover, in spite of the national authorities' margin of appreciation, the Court reasoned that the interference was not proportionate to the legitimate aim pursued.

 

vi).       Dalban v. Romania

 

54.       In the 1999 case of Dalban v. Romania,[35] the Court held that the State violated Article 10 because convicting a journalist for publishing allegedly defamatory information without demonstrating that such information was untrue was not proportionate to the legitimate aim of protecting the reputation of others.  The applicant was the widow of a journalist, Mr. Dalban.  Dalban wrote several articles in a local magazine that he operated, alleging fraud by G. S., the chief executive of a state-owned agricultural company.  In addition, Mr. Dalban made allegations against Senator R.T., who sat on the board of the agricultural company, stating that he had improperly benefited from his position on the board.  Mr. Dalban was convicted of criminal defamation, received a suspended sentence, was ordered to pay costs, and was banned from practicing his profession.  On appeal, the ban was set aside.  On further appeal by the Attorney General, the Supreme Court acquitted Mr. Dalban’s conviction in respect of G.S. on the ground that he acted in good faith.  In respect of the libel of R.T., the Supreme Court quashed Dalban’s conviction and, while holding that he had been rightly convicted, decided to discontinue the proceedings in view of his death.  As Dalban’s widow, the applicant sought compensation for the State's alleged violation of Article 10.  The Court considered that the applicant was a victim regardless of the fact that the domestic courts reversed one of his convictions and quashed the other conviction because of Dalban's death.  The Court arrived at this conclusion because the domestic courts did not provide adequate redress as required by domestic law and held that Dalban was rightly convicted.

 

55.       The Court relied on the principles set out in the Bladet Tromsø case, and noted that the articles at issue concerned matters of public interest—the management of state assets and the way in which politicians fulfill their mandate.  The Court further mentioned that there was no proof that the description of events in the article was totally untrue and designed to promote a defamation campaign against G.S. and Senator R.T.  Moreover, the Court pointed out that Mr. Dalban did not write about aspects of Senator R.T.'s private life, but rather focused on the senator's behavior and attitudes in his capacity as an elected representative.  The Court also recognized that in the proceedings for defamation against G.S., the domestic court found that the prosecutor could not provide sufficient information to establish that the information Mr. Dalban published was false.  Finally, the Court indicated that the government did not respond to the European Commission's contention that the applicant's conviction was not necessary in a democratic society.  The Court concluded that Mr. Dalban's conviction was not proportionate to the legitimate aim pursued, and therefore that the State violated Article 10.

 

vii)        Bergens Tidende and Others v. Norway

 

56.       The issue was brought up again in the 2000 case of Bergens Tidende and Others v. Norway.[36]  In this case, the applicants were a daily newspaper, its editor, and a journalist employed by the newspaper.  The newspaper published an article describing the work of Dr. R, a cosmetic surgeon, and the advantages of cosmetic surgery.  Subsequently, the newspaper was contacted by a number of women who had received treatment from Dr. R and were highly dissatisfied with it.  The paper published some of the complaints received together with photographs showing disfigurement.  Several articles were published in subsequent issues of the paper.  As part of the discussion, the paper published an interview with a hospital plastic surgeon who stated that there are small margins between success and failure in plastic surgery.  In addition, one issue contained an interview with Dr. R.  He declined to comment on the particular cases stating that he was bound by a duty of confidentiality, despite the fact that the women concerned had consented to release him from the duty.  Further articles on the subject of Dr. R’s cosmetic treatment followed in which satisfied patients voiced their opinions. After the publication of the newspaper articles, Dr R received fewer patients and had to close his business in April 1989.  Dr. R instituted defamation proceedings against the applicants.  The Supreme Court found in favor of Dr. R and awarded him damages and costs.

 

57.       The European Court emphasized the principles that a State must tolerate ideas that shock, offend, or disturb.  The Court also underscored the essential role the press plays in a democratic society, pointing out that the "national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of 'public watchdog' by imparting information of serious public concern."  Additionally, the Court pointed out that "when measures taken by national authorities are capable of discouraging the press from disseminating information of legitimate public concern, careful scrutiny of the proportionality of the measures on the part of the Court are called for."  The Court also maintained that the exercise of freedom of expression carries duties and responsibilities.  For journalists, this responsibility requires them to act in good faith in order to provide accurate and reliable information according to media ethics.

 

58.       The Court considered that the personal accounts of various women's experiences with plastic surgery raised important questions about human health and were therefore matters important to the public interest.  The Court rejected the government's argument that the patients' grievances regarding the standard of care provided by one surgeon were private matters in which the public did not have an interest.  Rather, the Court maintained that the articles were published as part of an ongoing general debate on issues regarding cosmetic surgery, particularly because the women's testimonies were published in response to Dr. R's ad that appeared prior to the publication of the testimonies. 

 

59.       The Court did not accept the government's argument that the articles amounted to accusations that Dr. R was negligent in his practice.  The Court reasoned that even if the public were to consider that the articles suggested that Dr. R practiced his surgery in a reckless manner, it did not consider that its duty was to determine how the public would interpret the articles.  Rather, the Court stated that its duty was to consider whether the measures imposed by the domestic court were proportionate to the legitimate aim pursued.  To this end, the Court noted that the women's accounts were correct and were accurately reported by the newspaper.  Even though the women used strong language, the Court did not find that the statements were excessive or misleading.

 

60.       Additionally, the Court rejected the government's position that the articles lacked proper balance.  According to the Court, reporting based on interviews is one of the most important ways in which the press can play its vital "public watchdog" role.  It therefore reasoned that it is not the Court's nor the national courts´ role to substitute their views for those of the press as to what reporting techniques are appropriate.  The Court also noted that the newspaper published articles defending Dr. R after the newspaper published the women's accounts.

 

61.       Finally, the Court confirmed that the publication of the articles had serious consequences for Dr. R's practice.  Nonetheless, as a result of the criticisms relating to his follow-up treatment, it was inevitable that substantial damage to his reputation would have occurred.  The Court concluded that the interest of Dr. R in protecting his professional reputation was not sufficient to outweigh the public interest in the freedom of the press to impart information concerning matters important to the public interest.  In the Court's view, the state's justification for the interference was relevant but not sufficient to demonstrate that such an interference was necessary in a democratic society.  The Court further considered that the restrictions were not proportionate to the legitimate aim pursued by the domestic authorities.

 

viii)       Constantinescu v. Romania

 

62.       The Court again addressed the issue of defamation in the 2000 case of Constantinescu v. Romania.[37]  In this case, the Court found no violation of the right to freedom of expression, because the interference complained of was proportionate to the legitimate aim of protecting the reputations of others.  The applicant, the general secretary of the Primary and Secondary School Teachers’ Union of the second district of Bucharest, expressed his dissatisfaction with the slow pace of the criminal investigation brought against two former managers and a former secretary of the union for theft, misappropriation and fraud.  He referred to them as “delapidatori” (persons found guilty of fraudulent conversion) in an article that was published after the prosecutor decided to discontinue the criminal investigation.  The applicant was convicted of criminal libel before the Bucharest County Court, was fined, and was ordered to pay damages to the former union employees.  Six years later, the Supreme Court of Justice quashed the decision, but the applicant was not refunded the damages or the fine paid.  Even though the applicant was acquitted, he could be considered a victim according to the European Court because he was not awarded damages for his wrongful conviction and was not refunded the fines and damages that he paid.

 

63.       In considering whether the interference in the Constantinescu Case was necessary in a democratic society, the European Court emphasized that it would review the decisions the national courts took pursuant to their power of appreciation.  The Court noted that the applicant's remarks were part of a debate regarding matters important to the public interest—the independence of unions and the functioning of the courts.  Nevertheless, the Court recognized that there are limits to the right to freedom of expression.  In the instant action, the Court considered that the applicant was free to participate in public debate by criticizing the subjects of the article. Nevertheless, the Court considered that the applicant did not have to use the term "delapidatori", because the subjects of the article were not convicted by a court.  The Court therefore concluded that the interference was proportionate to the legitimate aim pursued. The Court additionally concluded that the penalty imposed was not disproportionate.  The Court ultimately held that because the authorities did not exceed the margin of appreciation accorded to them, no violation of Article 10 occurred.

 

            ix)        Feldek v. Slovakia

 

64.       In the 2001 case of Feldek v. Slovakia,[38] the Court decided unanimously that a violation of Article 10 of the European Convention had been committed.  The applicant had published a poem in a newspaper commenting on the change of leadership in the country.  The poem contained a passage stating that "a member of the SS and a member of the [former Czechoslovak secret police] embraced each other".  Two journalists commented on the poem, saying that the reference to the "former member of the SS" applied to the newly-appointed Minister for Culture and Information, about whom it was common knowledge that during the Second World War he had been enrolled in a military course run by Germans.  The Minister published a rebuttal to which the applicant responded stating that he had merely expressed his concern about the participation in the newly-formed democratic government of someone with a "fascist past."  The Minister then sued the applicant for defamation.  The applicant won at first instance, but on appeal his statements were found to be defamatory and the Minister was allowed to publish this finding in five newspapers of his choice.

 

65.       The Court considered that the applicant's statement was made and published as part of a political debate on matters of general and public concern relating to the history of the country which might have repercussions on its future democratic development.  Moreover, it concerned a Government Minister, a public figure in respect of whom the limits of acceptable criticism are wider than for a private individual.  The Court noted that the applicant's statement contained harsh words, but was not without a factual background, and that there was no suggestion that it had been made otherwise than in good faith, pursuing the legitimate aim of protecting the democratic development of the newly-established State of which he was a national.  The Court noted, furthermore, that the applicant's statement was a value judgment, the truthfulness of which was not susceptible of proof.   The Court did not consider that the mere use by the applicant of the phrase "fascist past" constituted a statement of absolute fact; the term was a wide one, capable of encompassing different notions as to its content and significance; one of them could be that a person participated in a fascist organization, as a member, and it did not imply specific activities propagating fascist ideals.

 

66.       The domestic court had based its conviction, among other things, on the fact that the applicant had no factual basis for the value judgment he had made.  The European Court held that this was an erroneous interpretation of the guarantee of freedom of expression:

[T]he Court cannot accept the proposition, as a matter of principle, that a value judgment can only be considered as such if it is accompanied by the facts on which that judgment is based. The necessity of a link between a value judgment and its supporting facts may vary from case to case in accordance with the specific circumstances.[39]

 

67.       The Court was satisfied that the value judgment made by the applicant had been based on information which was already known to the wider public, both because the Minister's political life was known, and because information about his past had been in publications by the press which preceded the applicant's statement as well as in a book published by the Minister himself.  The domestic courts had failed to establish a pressing social need for protecting the personal rights of the Minister, a public figure, above the applicant's right to freedom of expression and the general interest of promoting this freedom when issues of public interest are concerned.  For all these reasons, the Court considered that the facts disclosed a violation of the applicant's right to freedom of expression.

 

x)         Dichand and Others v. Austria

 

68.       In the 2002 case of Dichand and Others v. Austria,[40] the Court found that there had been a violation of the right to freedom of expression.  In June 1993, the applicants’ newspaper published an article written under a pseudonym by the editor/publisher concerning a Mr. Graff.  In addition to his position as Chairman of the Legislative Committee at that time, Mr. Graff was a private lawyer who represented one of the applicants’ primary competitors.  In his parliamentary capacity, Mr. Graff proposed legislation that significantly increased monetary liability for failure to comply with injunctions, whereby fines were to be multiplied by the number of enforcement orders levied when a party failed to comply with an injunction.  The article in the applicants’ newspaper alleged that Mr. Graff proposed this legislation in order to serve his private client and criticized Mr. Graff’s failure to leave his private legal practice while undertaking government service.  Mr. Graff applied for and was granted an injunction, ordering the applicants to refrain from publishing statements alleging conflicts of interest with respect to Mr. Graff’s capacities as a private lawyer and a Member of Parliament.  The Austrian court interpreted the statements regarding Mr. Graff as insults and as statements of fact, the truth of which must be proved by the applicant, rather than value judgments.  The Austrian court believed, additionally, that the article contained an incorrect factual assertion that Mr. Graff was a member of the government.  The applicant appealed the injunction to two higher Austrian courts, where both appeals were unsuccessful.

 

69.       The European Court assessed that the injunction as to the statements regarding Mr. Graff constituted an interference with the right to freedom of expression.  The Court found that the interference was "prescribed by law," in spite of the applicants’ submission otherwise, because there was considerable domestic case law on this issue.  The Court also found that the interference was in pursuit of a legitimate aim, namely the protection of the reputation or rights of others.  The Court assessed that Austria had overstepped the margin of appreciation accorded Member States under the European Convention on Human Rights, and that the injunction was not proportionate to the aim pursued.

 

70.       In light of the political context surrounding publication, the Court concluded that the statement in the applicant’s publication was a value judgment, rather than a statement of fact.  Accordingly, the applicant should not be required to prove the truth of such statements in order to publish them.

 

71.       The Court disagreed with the Austrian courts’ contention that the article misrepresented the fact that Mr. Graff was a member of the government. The Court argued that such a reading was not justifiable, given the context.  Indeed, they pointed out that, "Mr. Graff’s exact function [was] spelled out explicitly," in the course of the article.

 

72.       With respect to conflict of interest allegations in the article, the Court contended that the test applied by the Austrian courts that the allegations were statements of fact which the applicants were required to prove, "imposed an excessive burden on the applicant."  The Court believed that these allegations were value judgments for which a sufficient factual basis existed.  The Court noted of the conflict of interest allegations that:

 

Mr. Graff was a politician of importance, and the fact that a politician is in a situation where his business and political activities overlap may give rise to public discussion, even where, strictly speaking, no problem of incompatibility of office under domestic law arises.[41]

 

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