Human rights – Freedom of expression – Art 10, ECHR – Defamation – Value judgment – Sufficient factual basis – Politician – Proportionality
The applicant published a weekly magazine in which it published a one-page review of a book by Mr S. The review referred to a particular politician’s “belittlement of the concentration camps as ‘punishment camps’”. The politician, Mr Haider, brought an action for defamation against the applicant and was successful. He was awarded damages, and the applicant was ordered to publish the judgment and forfeit the relevant issue of the magazine. The court held that while it was true that Haider had used the term ‘punishment camp’, the article had entirely disregarded the context of his statement. In particular, Haider had also said that an ethnic minority had almost been made extinct in the camps. The Vienna Court of Appeal dismissed the applicant’s appeal, and it appealed to the European Court, alleging that its right to freedom of expression had been violated.
Whether the reasons given for the interference with the applicant’s right to freedom of expression were relevant and sufficient, and whether the interference was proportionate to the legitimate aim pursued.
The statement was a value judgment. The issue was whether the applicant had provided a sufficient factual basis for it. The necessity to provide such facts is less stringent where these facts are already known to the public. The limits of acceptable criticism are wider as regards a politician than as regards a private individual. Mr Haider, as a leading politician known for ambiguous statements about World War II, must display a particularly high degree of tolerance of criticism in this context. Use of the term “punishment camp” may reasonably be criticised, particularly if used by one whose ambiguity towards the Nazi era is well-known. The fact that Mr Haider had used the term was therefore a sufficient factual basis for the applicant’s statement. The reasons adduced by the domestic courts were therefore not relevant and sufficient. The inclusion of the severe and intrusive measure of forfeiture of the relevant issue was disproportionate.
Value judgments always require a sufficient factual basis, but what is ‘sufficient’ and whether it need be expressly stated depends on the circumstances. Politicians, particularly those with a reputation for controversy, will always be expected to tolerate criticism that might be actionable if directed at an ordinary citizen.