DISSENTING OPINION OF JUDGE LOUCAIDES

I do not agree with the finding of the majority that t here has been a violation of A rticle 8 in this case on account of the failure to protect the applicant against excessive defamatory criticism damaging to his reputation.

For the purposes of my opinion it is, I believe, useful to recount the basic facts of the case.

In the beginning of 1995 P. (a professor of political sciences) published an article in which he alleged that the Jews had declared war on Germany in 1933. He also trivialised the crimes of the Nazi regime. In February 1995 the applicant published a commentary on this article in which he criticised P. in harsh terms for using Nazi terminology and disseminating ideas which were typical of the “Third Reich”. More specifically he accused P. of reviving the old Nazi lie of a worldwide Jewish conspiracy and of confounding the roles of perpetrators and victims. Subsequently P. brought defamation proceedings against the applicant, which failed because the courts found that the applicant ' s criticism constituted a value judgment with a sufficient factual basis derived from P. ' s article.

In April 2000 P. was prosecuted on charges under the National Socialism Prohibition Act in respect of his article. Shortly before the date scheduled for his trial, P. committed suicide.

In June 2000 the weekly Zur Zeit published an article which referred to the applicant ' s criticism of P. ' s article of 1995 and alleged that the applicant ' s comment had unleashed a manhunt which had eventually resulted in the death of the victim. It referred to the applicant and a number of other persons as members of a “hunting society” w hich had persecuted P. , driving him eventually to his death. In February 2001 this statement was repeated in a letter to subscribers of Zur Zeit . The applicant brought defamation proceedings in respect of this article and in respect of the letter, which failed because the competent courts in Austria found that they contained a value judgment which was not excessive and which relied on a sufficient factual basis.

It appears that the defamation that the applicant was complaining about was the statement that he was a member of a “hunting society” which had driven P. to commit suicide, and that there was a causal link between the applicant ' s criticism of P. ' s article and the latter ' s death.

Admittedly the impugned statement was expressed in an aggressive and hostile style. However, this is not enough to lead to the conclusion that it amounts to a violation of the applicant ' s right to respect for his reputation.

In deciding whether or not the impugned statement was so defamatory as to qualify as a violation of the right in question, it is important to understand its meaning and effect in the context of the above facts . I believe that the statement cannot reasonably be interpreted as meaning that the applicant killed P. or intentionally acted in such a way as to cause his death.

P. committed suicide, and therefore the statement in its worst possible meaning can only be taken as connecting P. ' s decision to end his life with the criticism by the applicant and others and his prosecution. In other words, it can only be understood to mean that these incidents upset P. to the point of his committing suicide. To my mind this is a value judgment in the form of an opinion based on the sequence of events, and this opinion may be held to express a possibility which cannot be considered unreasonable. It is important to note that the impugned statement did not contain an accusation that the applicant, through his article, had planned to cause P. to commit suicide. And no intelligent person could possibly understand the statement as implying such an accusation. In so far as the impugned statement can reasonably be interpreted as meaning that the applicant ' s article and other similar criticisms or judicial proceedings by other persons against P. had led him to commit suicide without this having been the intention of any of these persons , I do not find any defamation of the applicant that could justify a finding of a violation of Article 8 of the Convention. As to the use of the term “hunting society”, I agree with the Vienna Court of Appeal that this term does not necessarily mean a group of persons who coordinated their activities with the aim of destroying P. ' s existence. In the context of the above facts it may reasonably be understood to mean several persons who through their acts – such as articles – had hurt P. ' s feelings, and therefore could be grouped together in one category (that of the “hunting society”). The term “hunting”, if taken literally, is excessive, but, in my opinion, it was used more as a figure of speech, in order to designate the unfriendly attitude of these persons towards P.

In sum, I agree with the final judgment of the domestic courts: I find that the impugned statement, which the applicant complained had injured his reputation, was an expression of an opinion, a “value judgment” based on a sequence of relevant events which provided a sufficient factual basis. In my view, the interpretation of this statement adopted by the applicant and the majority in this case is exaggerated and unrealistic. It seems to me that it offended the applicant but did not exceed the limits of freedom of expression guaranteed by Article 10 of the Convention. In this connection I must repeat the classic statement about freedom of speech, initiated in the Handyside v. the United Kingdom case (Series A no. 24, p. 23, § 49):

“ Freedom of expression constitutes one of t he essential foundations of ... a [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ' information ' or ' ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ' democratic society ' . ”

Finally, I feel the need to express my great satisfaction at the clarity and firmness with which, for the first time, a judgment of this Court has made it clear that a person ' s right to protection of his or her reputation is protected by Article 8 as being part of the right to respect for private life, a position that I have always supported.