Full case report

Albert-Engelmann-Gesellschaft mbH v Austria

Reference Application No. 46389/99
Court European Court of Human Rights

Judge Rozakis (President), Lorenzen, Vajic, Botoucharova, Kovler, Steiner, Hajiyev (Judges), and Nielsen (Section Registrar)

Date of Judgment 19 Jan 2006


Summary

Human rights – Freedom of expression – Article 10 ECHR – Defamation – Statement of fact/value judgment – Factual basis – Letter – Author unidentifiable – Publisher not distancing itself from statements


Facts

A owned and published the magazine Der 13. – Zeitung der Katholiken für Glaube und Kirche (“The 13th – Newspaper of Catholics for Faith and Church”). The magazine published six letters to the editor dealing with the discussion on a “Church Referendum Movement” organised by Catholics to promote “progressive” ideas and to strengthen lay influence within the Catholic Church. One of these letters reflected a conservative position towards the Church Referendum Movement and criticised Mr Paarhammer, at the material time Vicar General of the Archdiocese of Salzburg, member of the Salzburg Cathedral Chapter and Professor of Canon Law at the Salzburg University, for his behaviour during the election process for the new Salzburg Archbishop in 1988/89. The letter apparently came from an ‘Initiative to Restore Unity’ which turned out not to exist. Mr Paarhammer brought proceedings against A for defamation. The Regional Court and Linz Court of Appeal found in his favour and awarded him damages.


Issue

Whether the award of damages against A was a violation of A’s right to freedom of expression under Article 10 of the European Convention on Human Rights


Held

Finding a violation of Art 10; the impugned statements related to a debate which was of considerable interest to the religious community at the time. Facts and value judgments must be distinguished: while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof, although even a value judgment may be excessive without any factual basis to support it. The statements here were value judgments and there existed a factual basis for them. The terms used appear far-fetched, but freedom of the press covers recourse to a degree of exaggeration or provocation. The fact that the author of the letter was not identified and that A did not distant itself from it was not relevant. A general requirement for the press to formally distance itself from the content of a statement of a third party that damages the reputations of others is not reconcilable with its role of providing information on current events, opinions and ideas.


Comment

Another Strasbourg case turning on the distinction between fact and comment (‘value judgment’). A dissenting judgment was given by Judge Steiners and Kovler. They applied a test that English lawyers would recognise as that in Reynolds: was the publication in the public interest and had the publisher acted responsibly. Their view was that the domestic courts were better placed to judge what was in the public interest, and that accordingly the publication of these statements about Mr Paarhammer was not in the public interest. They also felt that, given the serious nature of the allegations, the publisher should have done more to comply with its ‘duties and responsibilities’ under Article 10(2) and that it was significant that it had not verified the identity of the letter’s author. It would be interesting to discover what the European Court would make of Galloway.


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