ECtHR: Kobenter and Standard Verlags GMBH v Austria

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ARTICLE 19

02 Nov 2006

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2 November 2006, Application no. 60899/00, European Court of Human Rights

Theme: Defamation
Sub-Issues: Criminal defamation; Public figures and bodies; Criticism of the judiciary
Test: Necessity in a Democratic Society
Penalty: Fine of ATS 13,500 (EUR 981) on the first applicant; fine of ATS 50,000 (EUR 3633) on the second applicant.
Decision: Violation of the right to freedom of expression; unanimous
Jurisdiction: European Court of Human Rights

 

 

 

Facts:
On 13 July 1998 the Linz Regional Court found that certain passages of a magazine article constituted the offence of insult for comments it made regarding homosexuals. Pages 14-15 of the court's judgment contained a lengthy digression about the nature of homosexuality, referring to a book called "Lexicon of Love (Lexikon der Liebe)" and the results of an opinion survey on this topic. It read, inter alia, that "in truth, homosexuality includes also the lesbian world and, of course, that of animals," which was followed by a long passage describing in detail examples of same-sex practices among different animals.

The judgment was written by Judge K.-P.B., the deciding judge in the case.

Politicians and representatives of the Austrian Forum of Gays and Lesbians publicly condemned the phrasing quoted above. On 2 September 1998 the newspaper "Der Standard" published two articles written by the first applicant. The first one referred to the commentary at issue, and criticized the text and style of Judge K.-P.B.'s opinion.

On 18 September 1998 Judge K.-P.B. decided that the above-mentioned excursus on pages 14-15 be taken out of the judgment of 13 July 1998.

Soon thereafter disciplinary proceedings were opened against judge K.-P.B., and a warning was issued against him.

In the meantime, Judge K.-P.B. filed a private prosecution against the first applicant - the journalist Kobenter - for defamation, and filed a compensation claim under the Media Act against the second applicant - the publisher of the newspaper Der Standard - on account of the article published on 2 September 1998.

On 29 June 1999 the St. Pölten Regional Court convicted both applicants of the charges filed against them. It found in particular that the article's statement that "the judgment delivered by the private prosecutor would only differ somewhat from the traditions of medieval witch trials" was capable of lowering Judge K.-P.B. in the public esteem by suggesting that he had violated his obligations under the law and the rules on professional conduct required of a judge.

On 11 November 1999 the applicants appealed against this judgment, claiming that the article at issue was a clearly labelled commentary that criticised exclusively the reasoning of the judgment and not the manner in which judge K.-P.B. had conducted the trial. The applicants argued that the statements were permissible value judgments based on facts and, thus, protected under Article 10 of the Convention. They further argued that journalistic liberty also allowed a certain degree of exaggeration and even provocation, and considering the public discussion caused by the reasoning of the judgment not only in various media but also among judges, the polemical style of the article was not disproportionate either.

The applicants' appeal was unsuccessful.

 

Held:
The Court first reiterated its general principles on the right to freedom of expression. It noted that the press plays an essential "public watchdog" role in democratic society, and that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest. It also recognized the judiciary's interest in maintaining a degree of public confidence to carry out justice. It concluded that interference with freedom of expression rights may only be necessary when there is a "pressing social need," the interference at issue is "proportionate" to the legitimate aim pursued and the justifications for the interference are "relevant and sufficient".

The Court ruled that the matters addressed in the applicant's article were issues in the public interest. It also ruled that the statements at question were value judgments based in fact and were therefore subject to Article 10 protection.

The Court further held that the statement in the applicant's article that "the judgment delivered by the private prosecutor would only differ somewhat from the traditions of medieval witch trials" made sufficiently clear that the criticism concerned the written judgment and not - as the domestic courts and the Government found - alleged deficiencies by the judge in conducting the proceedings.

In addition, the Court held that the applicants' criticism was not an unjustified attack against the judge, but was instead the lawful exercise of their journalistic duty to speak in the public interest.

Unlike the Government and the domestic courts, which balanced the interests of the involved parties in favour of the judge's interest in protecting his reputation and the standing of the judiciary in general, the Court considers that the applicants' interest in disseminating information on the subject-matter, admittedly formulated in a provocative and exaggerated tone, outweighed the interests of the former in the circumstances of the case. The facts that those passages of the judgment concerned had later on been taken out by the judge himself, and secondly, that a warning had been imposed on that judge in subsequent disciplinary proceedings prove that that judge had not discharged the heavy responsibilities in a manner that was in conformity with the aims entrusted to judges. (para. 31)

Accordingly, the Court found that there were not "relevant and sufficient" reasons to justify the interference at issue. The restriction could not be considered necessary in a democratic society and thus it violated the applicant's Article 10 right to freedom of expression.

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