Lingens v. Austria

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ARTICLE 19

08 Jul 1986

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8 July 1986, Application No. 9815/82 (European Court of Human Rights)

Theme: Defamation
Sub-Issues: Public figures and bodies; Defences
Test:Importance of freedom of expression, necessity
Penalty:Financial
Decision:Violation of the right to freedom of expression (Article 10 ECHR); unanimous
Jurisdiction: European Court of Human Rights: Austria

Facts:

The applicant, a journalist and editor of the Vienna magazine 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, and it had been expected that the retiring Austrian Chancellor would have to form a coalition with the party of Mr P. in order to stay in power. However, very shortly after the elections, revelations had been made about Mr. P.'s Nazi past. The retiring Chancellor defended Mr. P. and attacked his detractor, whose activities he described as "mafia methods." The applicant's articles sharply criticised 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 criticised in his private capacity, fined the applicant 20,000 Schillings. On appeal, the fine was reduced to 15,000 Schillings.

Held:

The imposition of the fine constituted an interference with the applicant's right to freedom of expression. The interference was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others; at issue was whether it was "necessary in a democratic society".

Importance of Freedom of Expression

The Court emphasised the importance of freedom of expression in a democratic society:

[F]reedom of expression ... constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to [legitimate restrictions] it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society." (para. 41, reference omitted)

This is of special importance as far as the press is concerned:

Whilst the press must not overstep the bounds set for the "protection of the reputation of others", it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has the right to receive them. (para. 41, references omitted)

The press has an important role to play in the political debate:

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 enables the reputation of others 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. (para. 42)

Necessity

In considering whether the restriction was "necessary" in the sense that it responded to a pressing social need, the Court emphasised:

The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression. (para. 39, references omitted)

Furthermore, it held:

In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned court decisions in isolation; it must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written. The Court must determine whether the interference at issue was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the Austrian courts to justify it are "relevant and sufficient". (para. 40, references omitted)

The Court noted that the applicant had used the impugned expressions to criticise the Chancellor's attitude as a politician towards the position of former Nazis in Austrian society. Therefore, the applicant had criticised the Chancellor in his public functioning and not in his private capacity. Furthermore, 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; 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. (para. 46)

Therefore, the fine imposed on the applicant was not necessary in a democratic society and constituted a violation of right to freedom of expression.


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