DISSENTING OPINION OF JUDGE SCH ÄFFER

1. In my opinion the Austrian courts did not neglect or fail to protect the rights and freedoms of the applicant as provided by the Convention. I fully agree with the Court (majority) ' s deliberations and its view that the protection of a person ' s reputation is encompassed with in the scope and meaning of “private life” ( A rt icle 8 of the Conv ention ). Moreover, it is important that this point is not disputed by the parties.

2. The question whether the Convention not only secures rights and freedoms to individuals but also imposes positive obligations o n the member S tates can probably not be answered for all rights and freedoms in the same way; hence one cannot give a general dogmatic formula. But it cannot be neglected that an adequate interpretation of the Convention depends on a fair balance between different rights, and esp ecially a balance between the protection of “private life” (including the reputation) of one person and the right to freedom of expression of others , a position which is already reflected and reali s ed from the very beginning in the reservations to both of the rights as set out in the relevant provisions ( A rt icles 8 and 10 contain the same values and nearly the same wording in their respective reservation s , both referring to the “rights and freedoms of others”).

3. Frequently we have to deal with bipolar (or even multi-polar) legal relationships which can be judged only by “ practical concordance ” ( comp are, for example, Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland , 20 th ed. 1995, RN 72 and 317 (in general), 393 and 400 (concerning freedom of information especially), and the recent jurisprudence of the Austrian Constitutional Court ( öVfGH , 1 December 2006, B 551/06, referring to A rt icle 10 of the Conv ention : “ ... die konkurrierenden Grundrechtspositionen [ sind ] unter Berücksichtigung der in den Gesetzesvorbehalten angesprochenen Rechtsgüter gegeneinander abzuwägen und auf diese Weise die damit zusammenhängenden Interessen der Parteien zu einem angemessenen Ausgleich zu bringen ”) . Hence, it is in the first place the task and duty of the domestic legislature to find a fair balance between the legally protected values and interest s at stake, and secondly, the task of the domestic courts to ensure that this balance is observed and implemented in individual cases – in both cases, of course, in the light and spirit of the Convention.

4. This observation has the purpose of underlin ing that the European Court of Human Rights has to operate very carefully when ruling on positive S tate obligations. It has to find a fair and adequate balance between safeguarding the private life of one individual and the freedom of expression of an other or others , which are both essential in a “democratic society” (as we conceive of it in Europe ). And perhaps there is a slight difference between cases where the private - life guarantee is in conflict with works of art and cases where the protection of private life is competing with

the freedom of open political debate. Whereas works of art – even if they offend somebody – enrich culture and social life, free expression – even if it is shocking or provo cative ( with in certain limits) – is indispensable for a democratic society.

5. In other words , w here both values are at stake, the result of the Court ' s balanc ing exercise ought not to depend on which particular A rticle of the Convention has been relied on in the case before it . F reedom of expression does not automatically prevail over the rights of others if an applica nt complains to the C ourt of an infringement of the right to freedom of information. And on the other hand, the protection of private life will not necessarily prevail over freedom of expression if the applica nt complains to the C ourt of a violation of the right to respect for private life ( for example, failure to protect his or her reputation). Of course, such balancing should always have regard to all the elements and standards which have already been developed in the Court ' s long -standing jurisprudence. But these criteria have to be applied sensitive ly , equ it a b ly and with respect and concern for the margin of appreciation afforded to the national authorities.

6. With that in mind , it is true that the present case has to be seen against the background of an ongoing dispute between exponents of different ideological positions and convictions which was fought out in the media and before the courts in Austria (see paragraph 3 9 of the judgment ). All the problems in this case began with an article by P. ( a professor, who later committed suicide) , published in the 1995 Yearbook of the Austrian Freedom Party (FPÖ). It should be mentioned that one of the three co-editors of the Yearbook (M.) was the opponent of the applicant (Mr Pfeifer) in the subsequent defamation proceedings . As a co-editor he had an understandable motiv e for participat ing in the public discussion aroused by the above -mentioned publication, and utter ing his opinion about the treatment of and comments concerning the now deceased author ( P. ).

7. In my opinion the same criteria have to apply to the freedom of expression of the applicant (Mr Pfeifer) as to the freedom of expression of the defendant (M.). And, indeed, the Austrian courts in both cases – referring to the Court ' s jurisprudence – were of the opinio n that the expressions used constituted harsh, but not excessive criticism (case of P., Vienna Court of Appeal ( Oberlandesgericht ), judgment of 4 May 1998, quoted in paragraph 9 of the judgment; case of M., Vienna Court of Appeal, judgment of 15 October 2001, and Vienna Regional Court, judgment of 31 January 2002, quoted in paragraphs 15, 16 and 20 of the judgment). In both cases the Austrian courts held that the use of the words in question constituted “a value judgment which relied on a sufficient factual basis” .

8. A necessary prerequisite for the description and explanation of a (social) condition or a (social) event, but also for a judg ment on a particular concept – such as “ Jagdgesellschaft ” ( “ hunting society ” ) in this precise case – is its specification or exact conceptual connection . It does not necessarily follow f rom a concept that this concept empirically correspond s to anything. A phenomenon such as a “ Jagdgesellschaft ” should actually exist in the social environment and not merely as a language statement. Consequently “ Jagdgesellschaft ” does not denote a fact.

9. At any rate , in the German language the phrase “ Jagdgesellschaft ” (hunting society /hunting party ) – as a language statement – does not necessarily mean an organi s ed group of consciously active collaborators, it very often also refers to a spontaneous social phenomenon : parallel action or an agitated mass. Different factors and persons may be active in such a way that something like collaboration results, although one cannot attribute all the effects or concrete responsibility to a single person, and nevertheless there is some kind of social causality. It cannot be inferred from the fact of P. ' s suicide that th e suspected (insinuated) cause was actually the reason for his suicide. This statement of restricted possibility about the correlation between “cause ” and “ effect” is well known in social sciences. The reaction would perhaps also have taken place if the suspected cause had not been present (so-called counterfactuals).

10. To describe and to criticise such a situation – even using an insulting word as a value judgment – has been regarded as possible and (given a factual basis) not excessive in the framework of a democratic society on the basis of freedom of expression, esp ecially in the exercis e of journalistic freedom (comp are Oberschlick v. Austria (no. 2) , judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1276, §§ 33 - 34, where the Court qualified the clear insult “ Trottel ” ( idiot ) as “part of the political discussion ... amount [ ing ] to an opinion whose truth is not susceptible of proof”). Such an assessment must be valid without bias for or against any particular ideology or political camp.

11. A person affected by criticism wh o himself or herself has previously gone to the public and expressed harsh criticism also, therefore, has to tolerate harsh counter -criticism. This applies to the present case, because the case has to take into account the whole context (and not only the applicant ' s complaint). I cannot agree with the majority ' s assessment that M. ' s letter to the subscribers to the newspaper Zur Zeit “overstepped acceptable limits, because it in fact accused the applicant of acts tantamount to criminal behaviour” ( see paragraph 47 of the judgment ). The statement that a person had driven somebody else to commit suicide is indeed a severe reproach – which nevertheless should be possible in an open society ; social pressure which induces somebody to commit suicide is blame worthy , but by no means a basis for a criminal charge or penal ty . Therefore, it does not hold true that the harsh criticism had to be understood as an accusation of criminal behaviour. And if that is not true, the balancing of the values at stake in the majority ' s opinion is not correct or adequate (according to the Court ' s own principles).

12. If the content of a contribution to a debate of general interest (even if it is rejected by the majority of society) is confined to a value judgment about the conduct of a person in a public discussion, when that person actively and of his/her free will initiate d or became involved in that discussion, the principle volenti non fit in j uria applies . State authorities cannot be blamed in such a situation – as there is a sufficient factual basis – for placing greater emphasis on freedom of expression than on the individual ' s right to the protection of his or her reputation.

13. To s um up , I do not concur with the majority of the Court. The aforementioned considerations lead me to the conclusion that the domestic courts did not fail to protect the applicant ' s reputation against interference by third persons, and therefore, in my opinion, there has been no violation of the applicant ' s right to respect for his private life under A rt icle 8 of the Conv ention .