Information Note on the Court’s case-law 39
February 2002
Unabhängige Initiative Informationsvielfalt v. Austria - 28525/95
Judgment 26.2.2002 [Section III]
Article 10
Article 10-1
Freedom of expression
Injunction on repeating statements alleging politician racist: violation
Facts: The applicant association publishes a periodical entitled “TATBlatt”. In 1992 it published a leaflet inviting readers to send the Austrian Freedom Party “small gifts in response to their racist agitation”. It mentioned in particular Jörg Haider, leader of the party and at the time a Member of Parliament, and gave a list of the addresses and telephone numbers of party members. Mr Haider sought an injunction prohibiting the applicant from repeating the statement and the Commercial Court granted the injunction, finding that the statement about racist agitation was a statement of fact rather than a value-judgment. The applicant’s appeal was dismissed and an extraordinary appeal on points of law was declared inadmissible by the Supreme Court.
Law: Article 10 – The interference was prescribed by law and pursued the legitimate aim of protecting the reputation and rights of others. As to the necessity of the interference, the impugned statement ought to be seen in the political context in which it was made, namely as a reaction to an opinion poll initiated by Mr Haider and the Austrian Freedom Party against “immigration without control”. The Government’s argument that the allegation of racist agitation was a particularly serious one, as it amounted to a reproach of criminal behaviour, could be accepted in principle in the light of the duties and responsibilities of journalists, but in the circumstances of the case there was no indication of deliberate carelessness on the part of the applicant. Rather, it appeared that the statement did not constitute a gratuitous personal attack, as it was made in a particular political situation in which it contributed to a discussion on a matter of general interest. In so far as the Government maintained that the statement was one of fact and could therefore be proved, since proof of “incitement to hatred” could be established in criminal proceedings, the degree of precision for establishing the well-foundedness of a criminal charge could hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular in the form of a value-judgment. The applicant published what might be considered as fair comment on a matter of public interest, that is a value-judgment, and the Court disagreed with the qualification given to the statement by the Austrian courts. While such an opinion may be excessive, in particular in the absence of any factual basis, that was not so in the present case. The Austrian courts had therefore overstepped the margin of appreciation.
Conclusion: violation (unanimously).
Article 41 – The Court made awards in respect of pecuniary damage and costs and expenses.
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This summary by the Registry does not bind the Court.
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