CONCURRING OPINION OF JUDGE JEBENS

I agree with the majority that the forfeiture of the 7 September 2000 issue of the weekly magazine News was in violation of Article 10 of the Convention. However, I do not fully share the majority ' s reasoning on two points. I will discuss this in the following.

First, the only justifiable reason for finding a violation of Article 10 in this case is, in my opinion, the fact that the applicant company had quoted the statement previously expressed by Mr Heller, in its reportage about a pending defamation case against him. This is so, because it transpires from the Court ' s case law that the privileged position of newspapers is based on “the contribution of the press to discussion of matters of public interest“ ( J ersild v. Denmark , judgment of 23 September 1994, A 298, § 35). Therefore, if the objectionable statements in the article in the newspaper Kurier were not in themselves protected by Article 10, neither the fact that the magazine had not made them, but “assisted in their further dissemination by quoting them” nor the fact that the statements had “already been widely disseminated”, as argued by the majority in para 30, is in my opinion relevant with regard to Article 10. By emphasizing these factual elements, the majority goes beyond what in my opinion is necessary in order to protect the role of the press.

Second, with regard to the critical approach in the News ' coverage of the defamation proceedings, I would like to make another clarification as to my own view. I agree with the majority that “the article remained within the limits of acceptable comment on court proceedings”, as argued in para 33. However, regard must in this respect be had to the nature of the statements. When evaluating the News ' coverage of the defamation proceedings against Mr Heller, it is in my opinion relevant that the statements which were quoted in the article were negative value judgments, not false factual allegations. This is so, because it must be assumed that the newspaper ' s rather critical approach to the defamation proceedings did not create additional damage to the persons described, as opposite to the situation if the quoted statements had contained factual allegations. Distinguishing between different types of allegation in this respect is in my opinion fully consistent with the press ' role of providing information, as described in the Thoma v. Luxembourg judgment, cited above, § 64.

CONCURRING OPINION OF JUDGE HERNDL

The purpose of this concurring opinion is to lay emphasis on two points.

1. In para . 30 of the judgment the Court stresses the fact that the incriminated article published in the weekly magazine NEWS on 7 September 2000 “did not make the objectionable statements itself but assisted in their further dissemination by quoting them.”

At the time No. 36/2000 of NEWS was issued, the impugned statements had already been widely disseminated as another newspaper had printed Mr Heller ' s “open letter” several months earlier. Accordingly, and in line with the Court ' s established jurisprudence (see the leading case, i.e. Observer and Guardian v. the United Kingdom , judgment of 26 November 1991, Series A no. 216, p. 33 ss .; also the We ber v. Switzerland , judgment of 22 May 1990, Series A no. 177, p. 22 : the incriminated relevant information had already become “public knowledge”), the reproduction of the impugned extracts of the “open letter” in the framework of an article published by NEWS cannot be regarded as a valid ground for the decisions of the Austrian courts as regards the forfeiture of issue no. 36/2000. There was indeed a violation of Article 10 of the Convention.

2. The content of Mr Heller ' s “open letter”, however, and the choice of the incriminated words should not easily be qualified as a simple value judgment criticising as it does certain politicians. The phraseology used by the author was apparently and primarily meant to insult those persons, and as such – as a personal insult couched in demeaning words like “ seelenhygienisch heruntergekommen ” (spiritually depraved) and “ niederträchtig ” (dastardly) – should not enjoy the protection of Article 10 of the Conven tion. As judges Matscher and Thór Vilhjá lmsson stated in their dissenting opinion in the Oberschlick (no. 2) case, “an insult can never be a value judgment” ( Oberschlick v. Austria (no. 2) , judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, p. 1279). Furthermore, in the latter case the Court was careful in tying its opinion on the proportionality (or rather the disproportionality ) of the reaction to the insulting word “ Trottel ” (idiot) to the indignation knowingly aroused by the speech of a polititcian (loc. cit. para . 34). Would the Court have said the same if, as in the present case, the insulting words had been contained in an “open letter” congratulating the competent authority for having allowed the performance of somewhat spectacular actions which met with severe criticism by the public ? (see para . 8 above).