Lingens v Austria (1986) 8 EHRR 407
34.... Mr. Lingens claimed that the impugned court decisions infringed his freedom of expression to a degree incompatible, with the fundamental principles of a democratic society.
This was also the conclusion reached by the Commission. In the Government's submission, on the other hand, the disputed penalty was necessary in order to protect Mr. Kreisky's reputation.
35. It, was not disputed that there was 'interference by public authority' with the exercise of the applicant's freedom of expression. This resulted from the applicant's conviction for defamation by the Vienna Regional Court on 1 April 1981, which conviction was upheld by the Vienna Court of Appeal on 29 October 1981.
Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was 'prescribed by law', had an aim or aims that is or are legitimate under Article 10(2) and was 'necessary in a democratic society' for the aforesaid aim or aims.
36. As regards the first two points, the Court agrees with the Commission and the Government that the conviction in question was indisputably based on Article 111 of the Austrian Criminal Code; it was moreover designed to protect 'the reputation or rights of others' and there is no reason to suppose that it had any other purpose. The conviction was accordingly 'prescribed by law' and had a legitimate aim under Article 10(2) of the Convention.
37. In their respective submissions the Commission, the Government and the applicant concentrated on the question whether the interference was 'necessary in a democratic society' for achieving the abovementioned aim.
The applicant invoked his role as a political journalist in a pluralist society; as such he considered that he had a duty to express his views on Mr Kreisky's condemnations of Mr. Wiesenthal. He also considered - as did the Commission - that a politician who was himself accustomed to attacking his opponents had to expect fiercer criticism than other people.
The Government submitted that freedom of expression could not prevent national courts from exercising their discretion and taking decisions necessary in their judgment to ensure that political debate did not degenerate into personal insult. It was claimed that some of the expressions used by Mr. Lingens overstepped the limits. Furthermore, the applicant had been able to make his views known to the public without any prior censorship; the penalty subsequently imposed on him was therefore not disproportionate to the legitimate aim pursued.
Moreover, the Government asserted that in the instant case there was a conflict between two rights secured in the Convention; freedom of expression (Article 10) and the right to respect for private - life (Article 8). The fairly broad interpretation the Commission had adopted of the first of these rights did not, it was said, make sufficient allowance for the need to safeguard the second right.
38. On this latter point the Court notes that the words held against Mr. Lingens related to certain public condemnations of Mr. Wiesenthal by Mr. Kreisky and to the latter's attitude as a politician towards National Socialism and former Nazis. There is accordingly no need in this instance to read Article 10 in the light of Article 8.
39. The adjective 'necessary', within the meaning of Article 10(2), implies the existence of a 'pressing social need'. 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 as protected by Article 10.
40. 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'.
41. In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, 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 paragraph 2, 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'.
These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, 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 a right to receive them. In this connection, the Court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.'
42. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
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 he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others - that is to say, of all individuals - 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.
43. The applicant was convicted because he had used certain expressions ('basest opportunism', 'immoral' and 'undignified') apropos of Mr. Kreisky, who was Federal Chancellor at the time, in two articles published in the Viennese magazine Profil on 14 and 21 October 1975. The articles dealt with political issues of public interest in Austria which had given rise to many heated discussions concerning the attitude of Austrians in general - and the Chancellor in particular - to National Socialism and to the participation of former Nazis in the governance of the country. The content and tone of the articles were on the whole fairly balanced but the use of the aforementioned expressions in particular appeared likely to harm Mr. Kreisky's reputation.
However, since the case concerned Mr. Kreisky in his capacity as a politician, regard must be had to the background against which these articles were written.. They had appeared shortly after the general election of October 1975. Many Austrians had thought beforehand that Mr. Kreisky's party would lose its absolute majority and, in order to be able to govern, would have to form a coalition with Mr. Peter's party. When, after the elections, Mr. Wiesenthal made a number of revelations about Mr. Peter's Nazi past, the Chancellor defended Mr Peter and attacked his detractor, whose activities he described as 'mafia methods'; hence Mr. Lingens' sharp reaction.
The impugned expressions are therefore to be seen against the background of a post-election political controversy; as the Vienna Regional Court noted in its judgment of 26 March 1979, in this struggle each used the weapons at his disposal; and these were in no way unusual in the hard-fought tussles of politics.
In assessing, from the point of view of the Convention, the penalty imposed on the applicant and the reasons for which the domestic courts imposed it, these circumstances must not be overlooked.
44. On final appeal the Vienna Court of Appeal sentenced Mr. Lingens to a fine; it also ordered confiscation of the relevant issues of Profil and publication of the judgment.
As the Government pointed out, the disputed articles had at the time already been widely disseminated, so that although the penalty imposed on the author did not strictly speaking prevent him from expressing himself, it nonetheless amounted to a kind of censure, which would be likely to discourage him from making criticisms of that kind again in future; the Delegate of the Commission rightly pointed this out. In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog.
45. The Austrian courts applied themselves first to determining whether the passages held against Mr. Lingens were objectively defamatory; they ruled that some of the expressions used were indeed defamatory- 'the basest opportunism', 'immoral' and 'undignified'.
The defendant had submitted that the observations in question were value judgements made by him in the exercise of his freedom of expression. The Court, like the Commission, shares this view. The applicant's criticisms were in fact directed against the attitude adopted by Mr Kreisky, who was Federal Chancellor at the time. What was at issue was not his right to disseminate information but his freedom of opinion and his right to impart ideas; the restrictions authorised in paragraph 2 of Article 10 nevertheless remained applicable.
46. The relevant courts then sought to determine, whether the defendant had established the truth of his statements; this was in pursuance of Article 111(3) of the Criminal Code. They held in substance that there were different ways of assessing Mr. Kreisky's behaviour and that it could not logically be proved that one interpretation was right to the exclusion of all others; they consequently found the applicant guilty of defamation.
In the Court's view, a careful distinction needs. to be made between facts and value judgements. The existence of facts can be demonstrated, whereas the truth of value judgements is not susceptible of proof. The Court notes in this connection that the facts on which Mr. Lingens founded his value judgements were undisputed, as was also his good faith.
Under paragraph 3 of Article 111 of the Criminal Code, read in conjunction with paragraph 2, journalists in a case such as this cannot escape conviction for the matters specified in paragraph 1 unless they can prove the truth of their statements.
As regards value judgements this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention.
The Vienna Regional Court held that the burden of proof was a consequence of the law and that it was not for the courts but for the legislature to make it less onerous. In this context the Court points out that it does not have to specify which national authority is responsible for any breach of the Convention; the sole issue is the State's international responsibility.'
47. From the various foregoing considerations it appears that the interference with Mr. Lingens' exercise of the freedom of expression was not 'necessary in a democratic society... for the protection of the reputation...of others'; it was disproportionate to the legitimate aim pursued. There was accordingly a breach of Article 10 of the Convention.