THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74245/01 by Karl ÖLLINGER against Austria

The European Court of Human Rights (Third Section), sitting on 13 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 14 May 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karl Öllinger, is an Austrian national who was born in 1951 and lives in Vienna. He was represented before the Court by Mr J. Unterweger, a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In May 1995 the W.B. company, i.e. a big Austrian steel company, was taken over by the A. holding. On 4 May 1995, in the course of the negotiations preceding the take-over, H.L., a businessman and president of the executive board of the A. holding, gave a written assurance that there would be no reduction in personnel at the Viennese site of the W.B. company within the next three to four years. On 17 May 1995 the assurance was repeated in the records of a meeting between H.L., the executive manager of the W.B. company, staff representatives and representatives of several banks.

On 16 March 1999 the W.B. company announced staff cuts of up to 430 employees, including 270 dismissals to be carried out at the company's Viennese site.

On 17 March 1999 the applicant, in his capacity as a member of parliament, namely as spokesperson for social affairs of the Green Party, issued a press release under the heading:

“Massive Staff Cuts in Vienna Alarming” (“Massive Arbeitsplatzverluste in Wien bedenklich”)

The press release included the following statement:

“H.L.'s plans which include staff cuts and the shut down of W.B.'s Viennese site constitute a clear breach of [his] promise given in public on the occasion of the take ‑ over.”

The above statement was reported in a number of daily newspapers.

Thereupon, H.L. brought injunction proceedings under Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) against the applicant with the Vienna Commercial Court ( Handelsgericht ). He requested that the latter be prohibited from stating or repeating that he “had broken his word with regard to his policy of no staff cuts as announced in May 1995”. He also requested that the statement be retracted and that this retraction be published in specified Austrian daily newspapers.

On 22 November 1999 the Commercial Court granted the injunction. It ordered the applicant not to repeat the impugned statement and to publish a retraction in the newspapers requested at his own cost. The court found that, contrary to the applicant's assertion, his statement was not a value ‑ judgment made in a political context, but a statement of fact, which jeopardised H.L.'s reputation as a business man. In this respect, the court also noted that H.L. was not a politician and that, according to the written statement of May 1995, the latter had only promised to make no staff cuts for a period of three to four years. Given the lack of precision regarding the time-frame it could not be assumed that the promise to make no staff cuts covered four full years. Thus, the allegation that H.L. had broken his word, by announcing in March 1999 that he intended to dismiss employees, was not supported by evidence.

The applicant appealed against the injunction. He submitted that the Commercial Court had not assessed the relevant facts against the background of the economic development of the W.B. company and that the impugned statement constituted a value-judgment.

On 29 May 2000 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the appeal. It considered that the Commercial Court had correctly assessed the relevant facts. Observing in particular that the applicant had himself failed to make any reference to the economic situation of the W.B. company in the material press release, it found, with reference to that text, that the only question at stake was whether H.L., by announcing staff cuts, had broken his word. In this respect, the Court of Appeal confirmed the Commercial Court's view that the impugned statement was a statement of fact. Referring to the written statement of May 1995, according to which there would be no reduction in manpower for a period of three to four years, it considered that the claimant's “guarantee” had lasted until May 1998 at the very most and concluded that the applicant had failed to prove his allegation.

On 13 March 1995 the applicant introduced an extraordinary appeal on points of law ( außerordentliche Revision ) against the Court of Appeal's decision.

On 23 October 2000 the Supreme Court ( Oberster Gerichtshof ) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law. This decision was served on the applicant on 15 November 2000.

B. Relevant domestic law

Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows:

“(1) Everyone who has suffered material damage or loss of profit because of an insulting statement may claim compensation.

(2) The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ...”

COMPLAINT

The applicant complains that the Austrian courts' decisions violate his right to freedom of expression as guaranteed under Article 10 of the Convention. He claims in particular that his statement was a value-judgment not susceptible of proof.

THE LAW

The applicant complains about a violation of his right to freedom of expression. He relies on Article 10 of the Convention which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government contended that the injunction at issue was “necessary” within the meaning of Article 10 § 2 of the Convention for the protection of the reputation and rights of others. Referring to the distinction between value judgments and statements of fact, as established in the Court's case-law, they argued that the Austrian courts had correctly qualified the applicant's statement as a statement of fact, for which the applicant had failed to adduce proof. Moreover, the interference was proportionate as the applicant was merely orderd to refrain from repeating his statement and to publish a retraction. Even if the applicant's statement were to be considered a value judgment, it lacked a sufficient factual basis, as the details of the assurances given by H.L. in May 1995 were not known to the public at large at the time the applicant's press release was issued, and were not mentioned therein either.

The applicant replied that he had made the impugned statement in his capacity as a member of Parliament. It voiced public concern regarding an important issue of social policy. H.L. had been criticised not as a private person but as a well-known, powerful business-man. Contrary to the Government's view, the statement at issue had to be regarded as a value judgment, expressing moral criticism regarding H.L. This value-judgment relied on a sufficient factual basis, namely the assurances given by H.L. at the time of the take-over and his manner of managig the W.B. company thereafter which had weakened its financial resources and resulted in the proposed lay-offs. The Austrian courts, which considered the applicant's statement as a statement of fact, wrongly concluded that he had failed to establish its truth. In case of doubt it had to be assumed that the guarantee not to make any staff cuts was valid for four years, that is until May 1999. In sum, the interference was not justified.

The Court finds that the contested injunction interfered with the applicant's right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Furthermore, it is not disputed that the intereference was prescribed by law and pursued a legitimate aim, namely the protection of the rights and reputation of others.

The parties' arguments concentrate on the question whether the interference was necessary.

The Court refers to its well-established case-law according to which the test of “necessity in a democratic society” requires it to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1) , judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII; Jerusalem v. Austria , no. 26958/95, § 33, ECHR 2001-II).

In the present case, the applicant made the impugned statement in his capacity as a member of Parliament or, more precisely, as a spokesperson for social affairs for the Green Party.  The press release at issue dealt with the planned lay-off of some 400 employees in a big company, i.e. with a sensitive social issue. In this connection, the Court reiterates that there is little scope for restrictions on political speech or questions of public interest ( Nilsen and Johnsen , cited above, § 46).

The domestic courts qualified the statement at issue as a statement of fact, the truth of which the applicant had failed to prove. The Government agree with this assessment, whereas the applicant asserts that his statement should have been qualified as a value judgment.

The Court's established case-law indeed distinguishes between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 ( see, among many others, Lingens v. Austria , judgment of 8 July 1986, Series A no. 103, p. 28, § 46 and, as a recent authorities, Feldek v. Slovakia , no. 29032/95, § 75, ECHR 2001-VIII and Jerusalem , cited above, § 42).

However, the Court further recalls that, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels v. Belgium , judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 236, § 47, and as recent authorities Feldek , cited above, § 76 and Jerusalem , cited above, § 43).

The Court observes that the allegation made by the applicant in March 1999, namely that H.L. had broken his word, referred to written assurances given by the latter in May 1995 on the occasion of the take-over of the W.B. company, namely that there would be no staff cuts for the next three to four years. The Austrian courts, therefore, rightly considered this statement as a statement of fact. Given that three years and ten months had already elapsed when the applicant made the impugned statement and in view of the lack of precision regarding the time-frame mentioned in the assurances given by H.L. the courts were entitled to find that the the promise to make no staff cuts did not cover four full years and that the applicant had, thus, failed to adduce proof for his allegation.

Even if the impugned statement were to be considered as a value judgment, as is the applicant's proposition, it could not be considered as fair comment, as it lacked a suffient factual basis (see Jerusalem , cited above, § 45). The applicant argued in essence that the domestic courts should have taken the economic background of the W.B. company into account, in particular that H.L.'s management had weakened its financial resources and, thus, led to the proposed lay-offs. However, it is  not disputed that the press release did not mention this background, nor was the W.B. company's economic situation an issue of common knowledge. In these cirucmstances, the courts rightly refused to consider this background as a factual basis for the applicant's allegation.

The Court finds that the reasons adduced by the Austrian courts to justify the interference were relevant and sufficient and that the interefernce was also proportionate. The injunction merely prohibited the applicant from repeating his statement and orderd him to publish a retraction but did not prevent him from discussing the issue in any other way.

In sum, the Austrian courts did not overstep their margin of appreciation, when considering that the injunction was “necessary in a democratic society” for the protection of the reputation and rights of others.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President