Information Note on the Court’s case-law 39

February 2002

Dichand and Others v. Austria - 29271/95

Judgment 26.2.2002 [Section III]

Article 10

Article 10-1

Freedom of expression

Injuction on repeating statements: violation

Facts : The first applicant is chief editor and publisher of the newspaper “Neue Kronen‑Zeitung”; the second applicant, a limited partnership, is the newspaper’s owner and the third applican t, a limited company, is the general partner of the second applicant. The first applicant published an article in which he criticised the Chairman of Parliament’s Legislative Committee, Mr Graff, a lawyer who had also represented the applicants’ competitor in unfair competition proceedings against companies belonging to the applicants’ media group. The article, referring to the example of a French Minister of Foreign Affairs, criticised Mr Graff for not giving up his law practice; it further stated that whe n Mr Graff was presiding the Legislative Committee an amendment benefitting the publishers whom he represented had been adopted; finally, the article referred to the presentation of Mr Graff’s “disreputable attitude” on television. Mr Graff brought injunct ion proceedings, requesting that the applicants be prohibited from making or repeating these statements and that the statements be retracted. The Commercial Court granted an injunction. It considered that the statements amounted to an insult and that they were statements of fact which the applicants had failed to prove. The applicants’ appeal was dismissed by the Court of Appeal and their extraordinary appeal on points of law was rejected as inadmissible by the Supreme Court.

Law : Article 10 – The interfere nce was prescribed by law and pursued the legitimate aim of protecting the reputation and rights of others. As to the necessity of the interference, there were three elements on which the injunction was based. The first paragraph illustrated a general mora l principle with a concrete example, adding that Mr Graff did not intend to comply with that principle; the following paragraph described in detail and accurately, with reference to his public function, the factual background for that remark. It was not ex plicitly stated that the Mr Graff was a member of the Government. In these circumstances, the Austrian courts’ conclusion that the injunction was justified because an incorrect statement of fact had been published – namely, the allegation that Mr Graff was a member of the Government – could not be endorsed. As to the second element, the statement concerning the legislative amendment did not imply that it served the interests of Mr Graff’s clients exclusively, only that it brought them considerable advantage s. In these circumstances, there was sufficient factual basis for the value-judgment, which represented a fair comment on an issue of general public interest. The same applied to the third element. In any event, the restriction on the applicants’ freedom o f expression was not necessary in a democratic society. Mr Graff was an important politician and the fact that a politician is in a situation where his business and political activities overlap may give rise to public discussion. While the applicants publi shed harsh criticism in strong, polemical language, on a slim factual basis, Aricle 10 protects information or ideas that offend, shock or disturb, and on balance the courts overstepped the margin of appreciation.

Conclusion : violation (unanimously).

Artic le 41 – The Court awarded the applicants the amount of the costs awarded to Mr Graff in the domestic proceedings, together with interest from the date of the Court of Appeal’s judgment. It also made an award in respect of the costs of the Convention procee dings.

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

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