Bulletins Story: ECHR DEFINITIVELY BRINGS REPUTATION WITHIN ARTICLE 8: PFEIFER v AUSTRIA

Date: 26.11.2007

Any lingering doubt that there may have been about whether the basket of privacy rights accorded by Article 8 of the European Convention on Human Rights includes a right to reputation has been eradicated by this judgment of the European Court of Human Rights (ECHR), which included a definitive statement to that effect.

A professor contributed a piece to the 1995 yearbook of the Austrian Freedom Party alleging that the Jews had declared war on Germany in 1933 and trivialising the crimes of the Nazi regime. This was then commented on by Karl Pfeifer, the editor of the official magazine of the Vienna Jewish Community. Mr Pfeifer criticised the professor for employing neo-Nazi tones. A defamation claim by the professor against Mr Pfeifer failed, the Austrian court finding that his criticism, “although harsh, was a value judgment with sufficient factual basis.”

The Vienna Public Prosecutor then brought criminal proceedings against the professor under the National Socialism Prohibition Act and shortly before his trial the professor committed suicide.

This was followed by an article in Zur Zeit magazine which alleged that Mr Pfeifer’s comments had unleashed a manhunt which had eventually resulted in the death of the professor. Mr Pfeifer unsuccessfully sued the magazine for defamation. Meanwhile, the editor of the magazine wrote to its subscribers seeking financial support and claiming that Mr Pfeifer and a number of other persons were members of a “hunting society” which had chased the professor to his death.

Mr Pfeifer then sued Zur Zeit magazine once again for defamation but that claim was also unsuccessful, the Vienna Court of Appeal treating the article as “a value judgment which was not excessive.”  The court found that the actions of Mr Pfeifer and others concerning the professor provided a sufficient factual basis for holding them morally responsible to some extent for the academic’s death.

Mr Pfeifer then applied to the ECHR for a determination that his Article 8 right had been interfered with.

The ECHR reiterated the Article 10 freedom of speech principles of how the press plays an essential role in a democratic society, but also that it must not overstep certain bounds, particularly in respect of the reputation and rights of others. The court addressed the question that Austria’s obligation under Article 8 “to protect the Applicant’s reputation may arise where statements going beyond the limits of what is considered acceptable criticism under Article 10 are concerned.” The court therefore examined “whether the Austrian Courts failed to protect the Applicant against excessive criticism.”

The ECHR was not convinced by the domestic courts’ assessment that the statements were mere value judgments. Zur Zeit magazine had not offered any proof of the alleged causal link between Mr Pfeifer’s article and the professor’s death. The ECHR considered that to attribute blame to the commentator required proof of this alleged causal link. The article claimed that Mr Pfeifer had caused the professor’s death by ultimately driving him to commit suicide. “By writing this, [the] letter to the subscribers of Zur Zeit overstepped acceptable limits, because in fact it accused the Applicant of acts tantamount to criminal behaviour.”

The court concluded as follows:

“Even if the statement were to be understood as a value judgment in so far as it implied that the Applicant and others were morally responsible for [the professor’s] death, the Court considers that it lacked a sufficient factual basis. The use of the term ‘member of a hunting society’ implies that the Applicant was acting in cooperation with others with the aim of persecuting and attacking [the professor]. There is no indication, however, that the Applicant, who merely wrote one article at the very beginning of a series of events and did not take any further action thereafter, acted in such a manner or with such an intention. Furthermore, it needs to be taken into account that the article written by the Applicant, for its part, did not transgress the limits of acceptable criticism.”

The ECHR concluded that the regional courts had failed to strike a fair balance between the right of the applicant to have his reputation safeguarded under Article 8 and the right of freedom of expression under Article 10, resulting in a violation of Article 8 of the Convention. In doing so, however, it came to the important conclusion that reputation should be included and safeguarded as a part of “private life”, having considered a wide range of earlier authorities:

“The Court considers that 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 also falls within the scope of his or her ‘private life’. Article 8 therefore applies. This is not disputed by the parties.”

Judge Loucaides, in a dissenting judgment, found that Article 8 had not been breached but did confirm the principle that reputation falls within the rights granted by Article 8 of the Convention:

“Finally, I feel the need to express my 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, a position I have always supported.”

Now that that is firmly established, it will be interesting to see whether the Reynolds defence, which has the effect of depriving the victim of defamation of any prospect of vindication, will be tested in Europe. If it is, the ECHR may possibly conclude that the radical Reynolds negation of the Article 8 right of the individual to correct untrue and defamatory material published against that individual is not truly necessary in a democratic society.

See Also:

ECHR CONFIRMS REPUTATION IS AN ARTICLE 8 RIGHT: LINDON (AND OTHERS) v FRANCE

THE RIGHT TO LIBEL FURTHER EXTENDED: CHARMAN v ORION

REYNOLDS AND PUBLIC INTEREST:  WHAT ABOUT TRUTH AND HUMAN RIGHTS?

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