Reference: Application No. 12556/03
Court: European Court of Human Rights
Judge: Loucaides (President), Vajiæ, Kovler, Hajiyev, Spielmann, Jebens & Schäffer
Date of judgment: 15 Nov 2007
Summary: Article 8 - Right to private life - Right to reputation - Article 10 - Freedom of expression - Defamation - Libel - Political criticism - Value judgments
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P published an article alleging that the Jews had declared war on Germany in 1933 and trivialised the crimes of the Nazi regime. The applicant A subsequently wrote a commentary criticising P in harsh terms. Defamation proceedings brought by P were dismissed. P was later prosecuted under the Prohibition Act, but committed suicide before the matter came to trial. A subsequent article and photograph published by M in the right-wing magazine Zur Zeit alleged that A’s (and others) criticism of P had unleashed a manhunt which had resulted in P’s death. A successful defamation claim against M was overturned by the Court of Appeal who held that the allegation that A was part of a “hunting society” persecuting P and eventually causing P’s death was a value judgment and not excessive. M had also published a letter appealing for financial help and repeated the allegations. A’s claim in respect of this letter was dismissed.
(1) Whether the allegations in M’s letter were value judgments;
(2) Whether a fair balance between Article 8 and Article 10 had been achieved;
(3) Whether the Austrian court had failed to protect A against excessive criticism.
Finding a violation of Article 8:
The guarantee afforded by Article 8 is intended to ensure the development without outside interference of the personality of each individual in his relations with others. A person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her private life under Article 8. Member states have an obligation to protect individuals against statements which go beyond the limits of acceptable criticism under Article 10.
This statement was not a value judgment as it established a causal link between A’s actions and P’s suicide, a fact susceptible of proof. Accusing A of acts tantamount to criminal behaviour overstepped acceptable limits. Even if the statement was a value judgment it lacked sufficient factual basis as there was no evidence to suggest that A was acting against P in cooperation with others.
The clearest possible affirmation that Article 8 encompasses protection of a person’s reputation. The President of the Court, Judge Loucaides, expressed in his (dissenting) judgment his “great satisfaction at the clarity and firmness with which, for the first time, a judgment of this Court has made it clear that a person’s right to protection of his or her reputation is protected by Article 8 as being part of the right to respect for private life.”
The fact that A had voluntarily entered the public discussion by publishing his criticism of P does not appear to have affected his right to protection of his reputation.
The judicial disagreement throughout the domestic and appeal proceedings as to whether the statement was a value judgment or a statement of fact demonstrates the fine line which separates the two concepts.