Case Law, Strasbourg: Standard Verlagsgesellschaft mbH v Austria, Narrow approach to “value judgments” leads to rejection of Article 10 application – Emma Foubister

8 12 2017

In Standard Verlagsgesellschaft mbH (No.2) v Austria [2017] ECHR 1040,  the Fifth Section of the European Court of Human Rights (“the Court”) held that ordering a newspaper to pay compensation to a politician falsely accused of being the spiritus rector (guiding spirit) of a spying operation did not violate Article 10 of the European Convention on Human Rights (“the Convention”).

Background

The applicant owns the daily newspaper “Der Standard”. The Carinthian Regional Hospital Operating Company (“the KABEG”) is a public-law institution which operates five hospitals in Carinthia.

In 2010, a public debate arose following financial problems and allegations of management errors and corruption within the KABEG. KS was the chairperson of the supervisory board and leader of the parliamentary group of the Freedom Party of Carinthia. The medical director of one of the hospitals criticised the human resources member of the board of management in a confidential employees’ meeting. A few hours later the medical director was dismissed without notice.

In November 2011, an article was published in Der Standard which accused the KABEG board of management of spying on an employees’ meeting for doctors. It described KS as putting pressure on journalists in respect of critical reports on the KABEG and accused him of being “the spiritus rector of the spying operation”.

On 10 January 2012, KS initiated private prosecution proceedings against the applicant company and an injunction suit preventing further dissemination of the allegations against KS. On 19 March 2012, the Vienna Commercial Court suspended the injunction proceedings until the termination of the criminal defamation case.

On 21 March 2012, the Vienna Regional Criminal Court rejected KS’s claims as inadmissible because the term spiritus rector was neither defamatory nor mocking. The Vienna Court of Appeal quashed the Criminal Court’s decision on 18 April 2012 and ordered it to initiate proceedings. The applicant company declared that it would not provide evidence as to the truth of KS having acted as a spin doctor because it said the statement was a value judgment.

On 15 May 2012, the Vienna Regional Criminal Court ordered the applicant company to pay KS compensation on account of defamation. The Vienna Court of Appeal upheld the decision because describing someone as the spiritus rector of a negatively connoted spying operation left the readers in no doubt that this person had been the initiator and spin doctor of the operation.

On 26 June 2013, the Supreme Court rejected the applicant company’s complaint that its right to freedom of expression under Article 10 of the Convention had been violated.

On 29 June 2013, the Court of Appeal upheld the Commercial Court’s decision to grant an injunction, finding that the criminal conviction had a binding effect on the injunction proceedings.

Judgment

Admissibility

The Court rejected the Government’s objection of non-exhaustion of domestic remedies in respect of the civil appeal due to the Supreme Court’s consistent case-law on the binding effect of criminal convictions on civil courts in the relevant proceedings [36]-[41].

Merits

It is common ground that the order to pay compensation to KS on account of defamation interfered with the company’s right to freedom of expression as guaranteed by Article 10(1) [43]. The interference was prescribed by law and served the legitimate aim of protecting the rights and reputation of others [44].

Necessary in a democratic society

The applicant company complained that the domestic courts had misinterpreted the term spiritus rector as a statement of fact rather than a value judgment, which in their view had a specific factual basis because KS had been associated with other spying operations [46].

The Court considered that the role of a politician in the context of a spying operation in the public health sector is matter of public interest [56]. While the limits of acceptable criticism of a public figure are wider than for a private individual, this cannot extend to defamatory statements that lack a factual basis [57].

The context of the spiritus rector statement and the complementary allegation that KS put pressure on journalists meant that it was not a value judgment and would be understood by readers as suggesting that KS played some active role in the operation [58]. KS’s association with other spying operations in the past cannot be taken as proof of the allegation relating to this particular spying operation [58]. The applicant company had never alleged nor submitted any evidence that KS had participated in the spying operation [58].

The compensation was moderate both in itself and in view of the range provided for in the domestic legislation [59].

The civil injunction was not disproportionate on account of the binding effect of the criminal conviction and the lack of separate assessment by the civil courts. The proceedings related to the very same factual basis and it was in fact the applicant company who requested suspension of the civil proceedings pending termination of the defamation case [60].

There was accordingly no violation of Article 10 [61].

Comment

Fact or value judgment?

This decision illustrates the important distinction between treating a statement as a fact or a value judgment for the purposes of Article 10. The Court was robust in its rejection of the applicant company’s suggestion that the “spiritus rector” statement was a value judgment, rather than an accusation of specific defamatory conduct. As the statement was made in the context of a broader allegation against the board of management and a specific allegation against KS himself, a reader would understand the statement to mean that KS had played an active role in the spying operation. Unlike a value judgment, the statement was susceptible to being proved to be true. This a strict approach making it more difficult to argue that descriptive or evaluative accusations are “value judgments”.

Evidence of truth

In reaching its conclusion, the Court considered it relevant that the applicant company never alleged that KS had actually participated in the spying operation and failed to make any attempt to demonstrate that the statement was true. The Court was unconvinced by the company’s reliance on KS’s alleged association with other spying operations. The decision makes clear that applicants cannot rely on similar historic conduct to demonstrate the factual basis of a particular allegedly defamatory statement.

Civil/ criminal proceedings

The Court conclusively determined that there was no need to examine the merits of an allegation of defamation in injunction proceedings where there was a criminal conviction on the basis of the same facts. The court approached the issue as part of its proportionality analysis but its decision is likely to apply as a more general rule. This sensible approach allows domestic courts to avoid the wasted time and costs involved in re-litigating the same issues and reduces the possibility of conflicting judgments.

Emma Foubister is a trainee barrister at Matrix Chambers


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