Information Note on the Court’s case-law No. 93

January 2007

Arbeiter v. Austria - 3138/04

Judgment 25.1.2007 [Section I]

Article 10

Article 10-1

Freedom of expression

Civil defamation on account of criticism against a government-appointed expert who had made provocative statements himself: violation

Facts : At the time of the events the applicant was the chairman of the workers' committee at the regional hospital of Carinthia, member of the regional parliament and speaker on health matters of the regional branch of the Social Democratic Party. In the context of a political debate concerning reform of the regional health system the regional government in 2001 commissioned a company to draft an expert opinion on the future of Carinthian hospitals, particularly with regard to reducing costs. In interviews with regional newspapers, the company's managing director, Mr Köck, advocated cutbacks in superfluous services and closing smaller hospitals and hospital departments. He also criticised the actual functioning of regional hospitals, stating that many unnecessary surgical operations were carried out and that the mortality rate due to medical negligence was relatively high.

In May 2001 Mr Köck co-founded a private investment company whose purpose was to take over and run hospitals with a view to maximising their potential. His appointment as expert by the regional government, approved by the regional branch of the Austrian People's Party and the Austrian Freedom Party, was contested by the Social Democratic Party. The latter also expressed misgivings that Mr Köck's role as a government-appointed expert on the reform of regional hospitals, giving him access to relevant data on the subject, was not compatible with his involvement in a private hospital management company. In June 2001 a regional newspaper published an article in which the applicant criticised Mr Köck for wishing to eradicate whole departments and hospitals from Carinthia and to break up a good health system in order to take over hospitals using his newly-founded company. He went on to associate Mr Köck with another alleged technical “hot shot” previously employed by the Governor of Carinthia, Mr Jörg Haider, and who had ended up before the Public Prosecutor's Office.

A regional court issued an injunction ordering the applicant to retract his comments and prohibiting him from making similar statements. It found that the impugned statements were statements of fact which gave the impression that Mr Köck was totally unqualified and, furthermore, referred to his alleged criminal activity. Mr Köck had not taken any steps which would have justified the applicant's reproaches. The applicant's statements were therefore untrue and defamatory statements of facts in respect of which a civil offence had been made out. Mr Köck's situation was not comparable to the situation of a politician or a private person who had entered the public scene and therefore had to display a greater degree of tolerance.

A court of appeal dismissed an appeal by the applicant, noting that the fact that Mr Köck had proposed to close some hospitals and had founded a private investment company for hospitals did not constitute a sufficient basis for establishing that he would misuse his mandate to push private business dealings. The applicant had, furthermore, stressed the reproach of criminal conduct by drawing a comparison with a “wonder-wizard who had ended up before the Public Prosecutor's Office”. The court did not agree with the applicant's argument that the impugned statements had to be understood as permissible value judgments.

Law : The Court could not agree with the regional court's findings that the statements made by the applicant had been untrue and defamatory and had given the impression that Mr Köck was totally unqualified and involved in criminal activities. The applicant had expressed his indignation at Mr Köck's alleged intentions, this being the applicant's own opinion rather than an actual statement of fact. At the time certain objective factors had supported the applicant's allegations: Mr Köck had advocated cutbacks and had recently founded a hospital investment company. While asserting that he was not focusing on Carinthian hospitals yet, he had not excluded that possibility in the future. Unlike the domestic courts, the Court did not find that the reference to a previous expert employed by Governor Haider had implied that Mr Köck was guilty of criminal conduct but had appeared more as an example of the Austrian Freedom Party's ways of choosing and supporting experts. The applicant's statements had to be seen as permissible contributions within the broader context of an ongoing general, political debate. Mr Köck had entered the public arena by repeatedly discussing the issue at stake with the press and, as a consequence, had to bear a higher degree of tolerance to criticism. Furthermore, having regard, on the one hand, to Mr Köck's critical proposals and active involvement in a public discussion, and, on the other hand, to the applicant's position as spokesman for those people primarily concerned, a certain degree of exaggeration had to be tolerated in the applicant's response and reaction. In sum, the domestic courts had restricted the applicant's freedom of expression while relying on reasons which could not be regarded as sufficient and relevant.

Conclusion : violation (unanimously).

Article 41 – EUR 7,934 in respect of pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes