Defamation / Reputation
Prosecutor v Elżbieta Hołoweńko and Marcin Krawczyk
Closed Contracts Expression
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The European Court of Human Rights (“ECtHR”) held that an injunction prohibiting the president of the Vienna Chamber of Medical Doctors (Ärztekammer for Wien) from criticizing a private health-care provider did not violate his right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR” or “the Convention”). Particularly, the Court concluded that protection of commercial reputation of the company outweighed the public interest in the subject matter concerned, and therefore justified the grant of interim and final injunctions.
In January 2007, Mr. Walter Dorner, president of the Vienna Chamber of Medical (Ärztekammer für Wien) published a letter on the Chamber’s website that was sent to all Chamber members. The letter referred to reports that a private company, F, was planning to provide radiology services to hospitals. In the letter, he warned that doctors might become mere employees of “locust” companies such as F that want to control the medical profession, and stated that the Chamber would use the legal and political methods available to stop such a disastrous development. [para. 6]
The F company lodged a complaint against Mr. Doner and the Chamber and applied for an injunction to prevent the distribution of similar letters with the Vienna Commercial Court. [para. 7] The Commercial Court granted the injunction, prohibiting the applicants from referring to the F company as a “locust” and stating that the provision of radiology services by F was a disastrous development. The Commercial Court found that these statements were defamatory under Article 1330 of the Civil Code and unethical under Austria’s Unfair Competition Act. [para. 8] The applicants appealed the decision. The Vienna Court of Appeal held that the statements were not defamatory, but since they were made in a commercial context and not in the Chamber’s capacity as an official authority, the statements constituted a violation of the Unfair Competition Act in that the term “locust” had a negative meaning and constituted an unethical general vilification of a competitor. [para. 15] On further appeal, Austria’s Supreme Court also agreed with the lower courts, finding that the prohibition rulings were justified. [para. 17]
The applicants then lodged the current application before the ECtHR, alleging an Article 10 ECHR violation. The applicants argued that, whilst they accepted that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 (2) of the Convention, the imposed prohibition had not been lawful because Section 7 of the Unfair Competition Act was not clear and therefore was not foreseeable. This, they argued, meant that the interference was not prescribed by law.
The applicant further argued that the use of the term “locust” was not intended to act competitively. Instead, the intention was to voice a criticism of a process he considered unlawful, specifically, the ongoing shift from the predominance of independent medical practitioners to medical services determined by capital, and the consequent risks for doctors and their work. In addition, he argued that the prohibitions imposed by the courts were disproportionate because they would prevent him from fulfilling his duties as President of the Vienna Chamber of Medical Doctors. [para. 54-56]
The Government, on the other hand, argued that the interference was “prescribed by law” on the basis of Sections 1 and 7 of the Unfair Competition Act, which were sufficient and relevant to the aims pursued, and formulated with sufficient precision to enable citizens to regulate their conduct. The Government accepted that the matter at issue was a matter of public interest, but considered the domestic court decisions to have fallen within the wide margin of appreciation regarding purely commercial matters. Furthermore, the Government argued that the courts had not prohibited the applicants from warning against the alleged threat that companies pose to the medical care system and that the courts had not imposed a penalty as such but rather an obligation not to repeat the statement that F acted ruthlessly or was a “locust”. Therefore the interference was minor and was not disproportionate. [para. 57-59]
Judges András Sajó, Vincent A. De Gaetano, Nona Tsotsoria, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc, and Gabriele Kucsko-Stadlmayer delivered the unanimous judgment.
The Court, in its Article 10 analysis, held that sections 1 and 7 of the Unfair Competition Act were sufficiently precise for the purposes of Article 10 of the Convention, and therefore, interference based on those provisions was prescribed by law within the meaning of Article 10. [para. 60]
The Court reiterated that under its case law, States have a certain margin of appreciation in assessing the necessity of an interference and that the criteria for balancing competing rights are, among others, the contribution to a debate of public interest, the degree of notoriety of the person affected, the prior conduct of the person concerned, the content, and the form and consequences of the publication. Where an application is lodged under Article 10, the ECtHR will also examine the way in which the information was obtained, its veracity, and the gravity of the penalty imposed on the person who made the statement. [para. 63-64] The Court noted that it had previously decided that large public companies are subject to closer scrutiny, and that the limits of acceptable criticism are wider for such companies. Nonetheless, there is a competing interest in protecting the commercial success and viability of companies for the wider economic good. Thus, the State enjoys a margin of appreciation when providing a means in domestic law for companies to guard against attacks to their reputation. However, this margin of appreciation must also be reduced when it involves an individual’s participation in a debate of general interest such as a debate about public health. [para. 64-66]
The Court also noted that assessing the justification of a statement involves distinguishing between statements of fact and value judgments. It held that the accusation that F acted as a “locust” was particularly serious and that, even if the applicants intended to make that statement in the context of a wider debate, they needed a solid factual basis on which to base that allegation. The Court agreed with the analysis of the Austrian courts that there was no factual basis, and the applicants failed to provide any persuasive argument substantiating the allegations. [para. 69]
Thus, the Court concluded that the prohibition imposed on the second applicant was based on “relevant and sufficient” grounds. Furthermore, no penalty was imposed, but rather, a prohibition on the reference to F as a “locust” and with regard to proportionality, the nature and severity of the courts action was moderate. [para. 70-72] Therefore, the court found that, overall, there was no Article 10 violation, because the interference with right to freedom of expression was necessary in a democratic society and within the meaning of Article 10 in order to protect the reputation and rights of the F company. [para. 73]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression as it places sanctions on defamatory speech against corporate entities above debate on a matter of public interest.
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