DISSENTING OPINION OF JUDGE JEBENS, JOINED BY JUDGE SPIELMANN

1. I respectfully disagree with the majority ’ s reasoning and conclusion in this case. In my opinion, the domestic courts ’ decision to order the applicant company to pay compensation to the claimants was not supported by “relevant and sufficient reasons”. Therefore, in my view, the interference with the applicant company ’ s right to freedom of expression was not “necessary in a democratic society”, as required by Article 10 para 2.

2. The domestic courts ’ decisions were based on section 7 of the Media Act, in that the courts held that Der Standard had reported on the strictly personal sphere of the claimants ’ lives in a manner which was likely to undermine them in the public. The impugned article was interpreted as alleging that Mrs Klestil-Löffler intended to divorce, and that she had close contacts with two men. The latter implied, according to the courts ’ expressed opinion, that Mrs Klestil-Löffler had committed no less than double adultery and that Mr Klestil was put in the position of a deceived husband. In dismissing the applicant company ’ s argument that the article was related to public life, the courts distinguished between a politician ’ s alleged marital problems and his state of health, because in their view only the latter could have a bearing on his public functions.

3. I am not convinced by the argument that the article in question did not contribute to any issue of public interest. There is in my opinion some strength in the applicant company ’ s assertion that the article: “A society rumour” (“Ein b ürgerliches Gerü cht”) intended in the first place to criticise the attitude of the so-called upper crust of Viennese society, which had nothing better to do than spread rumours about the Federal President ’ s marriage. While the article did not concern a political debate, it can nevertheless be said to have contributed to an issue of general interest, namely certain attitudes of society towards the presidential couple (see, mutatis mutandis, Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 6266/03, § 25, 22 February 2007, which concerned a satirical article on society ’ s attitudes towards a sports star). Thus, it is questionable whether at all the impugned article related to the personal sphere of the presidential couple.

4 . However, even if one accepts the domestic courts ’ analys is , that the article spread rumours about the presidential couple ’ s private life, the state of the marriage of the Federal President can in my view not be regarded as a topic of no public interest. Being in the position of head of state, it is a matter of fact that many people are interested in the president ’ s private life, though admittedly for various reasons, spanning from concern about the president ’ s well-being to mere curiosity. Moreover, the fact that the presidential couple had kept the public informed about the first applicant ’ s divorce and his remarriage to the second applicant indicates that the claimants themselves were aware of the public interest in such matters. In these circumstances it is important that the Court does not take a paternalistic view, and try to decide for people what the true meaning of public interest is. In my view, there can be no doubt that the impugned article concerned a matter which was of legitimate interest among many people, and notably not the everyday life of a person who has not sought publicity (see, a contrario, Von Hannover , cited above, §§ 62 and 64).

5. In that context the question whether in fact rumours concerning the presidential couple ’ s marriage were circulated at the time was of some relevance (see, mutatis mutandis , Tammer , cited above, § 68 ) . It appears from the article that Mr Klestil himself had made a statement in the periodical News, in which he apparently commented on the rumours of a possible divorce, calling them completely unfounded. However, because the domestic courts had found that there was no direct link with the public life within the meaning of section 7 of the Media Act, the proof of truth in respect of the existence of the rumours reported was not available to the applicant company.

6. Furthermore, although the impugned article was placed in the domestic politics section, the heading “Gossip mongering” and the title “A society rumour” already made it clear that it was not to be taken at face value. The text itself did not pretend to relate to any established facts. It reported, in a somewhat humorous way, on rumours about the Federal President ’ s marriage, and without using any insulting or abusive language (see, a contrario, Tammer , cited above, § 67). While it did not take a stance on the rumours concerning a possible break-up of the Federal President ’ s marriage, it distanced itself from allegations that Ms Klestil-Löffler had “close relationships” with two other men, by explaining that there were professional reasons for her being well acquainted with the two men concerned which should arouse no suspicion whatever.

7. Bearing in mind the Court ’ s supervisory function, I find it rather far-fetched to read the passage above as meaning that Ms Klestil-Löffler had adulterous relationships with two other men. At least, though it appears that the text is open to different interpretations, the domestic courts failed to give convincing reasons why they judged the applicant company on the basis of the most offensive one.

8 . In sum, I consider that the impugned text remained within the limits of acceptable comment in a democratic society and that the domestic courts transgressed their margin of appreciation when interfering with the applicant company ’ s right of freedom of expression. I therefore conclude that there has been a violation of A rticle 10.