Information Note on the Court’s case-law 233
October 2019
Lewit v. Austria - 4782/18
Judgment 10.10.2019 [Section V]
Article 8
Positive obligations
Article 8-1
Respect for private life
Domestic courts’ failure to conduct comprehensive assessment in defamation claim: violation
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Effectiveness of remedy which did not allow for a claim of non-pecuniary damage to be made in defamation proceedings: admissible
Facts – In August 2015 a right-wing journal published an article in which the author called those liberated from the Mauthausen concentration camp in 1945 a “plague” and described the former prisoners as “criminals” who “plagued the country” by “robbing and plundering, murdering and defiling”. Criminal proceedings brought against the author of the article were discontinued. In February 2016 the same journal published another article by the same author, reporting on the discontinuation of the criminal proceedings against him and repeating the impugned statements.
The applicant, a Holocaust survivor, activist and former prisoner of Mauthausen, lodged a claim under sections 6 and 8a of the Media Act against the 2016 article, requesting compensation for non-pecuniary damage and a revocation of the statements. The domestic courts rejected his claim, finding that it could not be established that the applicant had been individually identifiable and that no one could be personally affected by an article which essentially reiterated the outcome of a criminal investigation.
Law – Article 35 § 1: In order to have his reputation protected from defamatory statements, the applicant had had the choice between several different legal avenues. The applicant’s goals in the domestic proceedings had been: (i) to have the domestic courts establish that the impugned passages of the 2016 article were defamatory and had violated his personality rights as protected under Article 8, and to have the statements retracted and the retraction published; and (ii) to obtain compensation for the non-pecuniary damage he had (allegedly) suffered as a result of the defamatory article.
(a) Effectiveness of the remedies under Article 1330 of the Civil Code and sections 12 and 14(1) of the Media Act
The Government had argued that the applicant should have brought actions under Article 1330 of the Civil Code in relation to both the 2015 and 2016 articles. That would have been an effective remedy for the applicant’s first declared aim, namely to have the statements in question retracted.
The Court had regularly made awards in respect of non-pecuniary damage in cases where an applicant’s personality rights had been violated by media publications. In other cases, it had held that the finding of a violation of Article 8 had constituted sufficient just satisfaction and rejected the claim for non-pecuniary damage. It followed a fortiori from its case-law concerning privacy cases triggered by media publications that a remedy available at national level had to give the domestic courts at least the possibility of making an award in respect of damage, if appropriate in the specific case. Consequently, a remedy which did not allow a claim to be made in respect of non-pecuniary damage could not be considered effective for the purposes of privacy cases under Article 8.
Since the applicant’s second declared aim had been to obtain compensation for the non-pecuniary damage resulting from the publication of the statements in question, it followed that a claim under Article 1330 of the Civil Code could not be considered effective for his purposes as it did not entail the possibility of obtaining redress for non-pecuniary damage in the event of a finding of a violation of his personality rights. The same considerations applied to the remedies under sections 12 and 14(1) of the Media Act, which, contrary to claims under sections 6 to 7c of the Media Act, did not provide for the possibility of a claim for compensation.
(b) Effectiveness of the claim under sections 6 and 8a of the Media Act in respect of the 2015 article
Section 8a(2) of the Media Act required a claim under sections 6 and 8a of that Act to be brought in relation to the first publication with allegedly defamatory content. The Government had argued that in the applicant’s case, that had been the 2015 article, in respect of which the applicant had failed to exhaust domestic remedies by missing the six-month deadline.
If the Government’s logic were to be followed, that would have meant that the applicant had no longer had a remedy available in respect of the first article when the second one had been published. However, the domestic courts had not explained whether that deadline, provided for the “first dissemination” of an article, was applicable at all in the case of a repetition of statements in a new context in another press article. The lack of an explanation was all the more relevant as the article had been published under a different heading and added new comments and elements which had not been present in the first article.
The Court also dismissed the Government’s objections that the applicant could have reported the impugned statements to the public prosecutor’s office under Article 297 of the Criminal Code, requesting a criminal investigation under Articles 111 and 115 of the Criminal Code.
Conclusion: admissible.
Article 8: The facts underlying the instant case fell within the scope of the applicant’s private life, even though he had not been named personally in the article in question.
At the outset, the first-instance court had found that the claimants lacked legal standing to bring the claim. The very particular question of whether members of a group could be personally affected by a statement which concerned a historical event involving a group that had been large at the time, but had over time been reduced to a rather small number of individuals, as in the applicant’s case, had not yet been dealt with by the domestic courts. The Court of Appeal had not mentioned the question of legal standing at all, notwithstanding that apparent lack of established case-law, the extensive arguments raised by the applicant in his initial claim and in his appeal, and the fact that the determination of that preliminary question had been essential for the examination of the merits of the claim. Since no finding had been made on that issue, the core of the applicant’s claim – namely that, in his view, he had indeed been personally affected by the defamatory nature of the statements, because the group had meanwhile been reduced to a very small number of members – had consequently never been examined by the domestic courts.
When looking at the statements in question within the context of the 2016 article, the Court was not persuaded by the domestic courts’ view that the applicant and the other claimants could not have been personally affected by them. The whole context of the 2016 article was very different from that of the 2015 article. While the 2015 article had focused on the historical event of the liberation of the Mauthausen prisoners, the 2016 article had concerned the criminal investigations in respect of the author of the articles and the person who had reported him to the public prosecutor’s office. Therefore a comprehensive explanation of the reasons for the domestic courts’ interpretation had been required.
Due to the lack of a comprehensive examination of the questions of legal standing and whether the statements had had the same or a separate meaning in the context of the 2016 article, the domestic courts had never actually examined the core of the applicant’s claim of defamation. The domestic courts had therefore failed to comply with their procedural obligation under Article 8 to conduct a comprehensive assessment of a matter affecting the applicant’s privacy rights.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage and EUR 648.48 in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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