Case Summary and Outcome

The Austrian Constitutional Court overturned the decision of the Federal Administrative Court, which had found that the Austrian Broadcasting Corporation (ORF) breached its statutory duty of objectivity after a political scientist, in a post-interview analysis on the news program ZIB 2, referred to a politician as “plemplem” (a dialect expression suggesting irrational or foolish behavior) and the moderator did not distance herself from this remark. The Court stated that the statement constituted a protected value judgment made in the context of political analysis and was sufficiently relevant to the content of the interview and the broader political debate. Given the heightened tolerance required of public figures regarding public expression, such a value judgment did not exceed the limits of protected freedom of expression. The Court further noted that no obligation existed for the moderator to distance herself from the remark in a live analytical segment, as Austrian media law recognizes reduced liability for statements that may not be preventable or editorially processed in real time. The Court thus held that the lower authorities had failed to adequately balance the statutory objectivity requirements against the constitutional protections of freedom of expression and broadcasting freedom guaranteed under Article 10 of the European Convention on Human Rights.

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Facts

On 25 July 2016, the Austrian Broadcasting Corporation (ORF) conducted an interview with the leader of a political party represented in the National Council as part of the television series “Sommergespräche” (Summer Talks) on ORF 2 television channel. The interview pertained to political issues, and the participating politician was given an opportunity to present his public positions. Later that evening, the interview was discussed and evaluated in the news program “ZIB 2,” where a political expert was invited to provide an analytical commentary on the interview and on the politician’s standpoints and performance.

During his concluding remarks, the expert described the politician as “plemplem,” a colloquial expression commonly used to suggest irrational or foolish behavior. His exact statement was:

“Honestly, I feel rather helpless, because on the one hand I would like to hook up the party members of Team Stronach to a lie detector to find out whether they are thinking what might also be the briefest assessment of some viewers, namely, in three words: he is ‘plemplem.’ On the other hand, I find that today’s atmosphere of the discussion was actually quite pleasant, even if its substance cannot really be evaluated, and that he simply tried something at an advanced age that he would have been better off not attempting.” [p. 5]

The moderator of ZIB 2 did not distance herself from or otherwise qualify or challenge this statement. The broadcast did not include an immediate response or clarification concerning the remark.

Following the broadcast, a complaint was addressed to the Austrian Communications Authority (KommAustria), alleging that the statement and the moderator’s failure to intervene breached ORF’s statutory duty of objectivity under the ORF Act. KommAustria found on 1 March 2017 that the expression, when combined with the absence of distancing by the moderator, violated the objectivity requirement applicable to ORF’s own commentary and analysis. The Federal Administrative Court (Bundesverwaltungsgericht) upheld this decision in a judgment from 29 May 2020, confirming that the broadcast did not comply with the objectivity obligations set out in § 4(5) of the ORF Act.

On the nature of the expression, the court held that “plemplem” degraded the politician’s personality and constituted humiliation. Drawing on dictionary definitions (including “irrational-stupid,” “not right in the mind”), the court found the remark made no contribution to political analysis but merely served to discredit the politician. Unlike his other sharply formulated conclusions, this polemical statement lacked supporting examples, and its impact was intensified by being framed as a supposedly public opinion.

The court also rejected ORF’s argument that the expression summarized voter evaluations. While opinion research falls within a political expert’s tasks, using anonymous comments collected from the live ticker on derStandard.at could not justify violating the objectivity requirement. Even if such online opinions existed, the court saw no reason why the negative view could not have been conveyed through language consistent with objectivity standards.

The court finally held that ORF must maintain a balance and avoid identification with one-sided evaluative statements. Identification exists where the ORF fails to maintain a clear distance. Since the political expert’s polemical statement, which viewers associated with ORF, went unchallenged by the moderator, ORF failed to create immediate balance and thus violated § 4 para. 5 para. 3 in conjunction with § 10 para. 7 ORF Act.

ORF subsequently challenged the decision before the Constitutional Court.

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Decision Overview

The judgment was delivered by Christoph Grabenwarter, President of the Constitutional Court of Austria, on behalf of the Court. The central issue was whether the decisions of the KommAustria and the Federal Administrative Court, finding that ORF had breached its statutory duty of objectivity due to the political scientist’s use of the expression “plemplem” combined with the moderator’s failure to distance herself, constituted an unlawful interference with the freedom of expression and broadcasting freedom guaranteed to ORF under Article 10 ECHR, which has constitutional rank in Austria.

ORF argued before the Constitutional Court that the lower authorities violated Article 10 ECHR by improperly restricting the scope of the analysis topic to the immediate interview rather than including the politician’s broader political conduct, and by misapplying objectivity requirements to what was properly a protected value judgment summarizing voter opinions, which is a core function of political analysis. ORF contended that the moderator had no duty to distance herself from the expert’s statement, as the law distinguishes between moderation and factual analysis, and the expert himself had already provided balance by offering both negative and positive assessments. Further, ORF emphasized that the statement was made in a live broadcast, where media law recognizes reduced liability for statements that cannot be editorially processed in real time, and that no employee had neglected journalistic due care.

The Court began by establishing that the contested decisions constituted an interference with ORF’s rights under Article 10 ECHR, as they imposed sanctions for broadcast content that fell within protected expression. The Court stated: “The challenged decision interferes with the complaining ORF’s freedom of expression and broadcasting freedom protected by Art. 10 ECHR.” [p. 19]

Turning to the justification for this interference, the Court examined whether the lower authorities’ application of the objectivity requirement was proportionate and necessary in a democratic society. The Court rejected the Federal Administrative Court’s narrow focus on isolated elements, holding that the analysis concerned matters of clear public interest: the political performance, public perception, and influence of a prominent politician (the founder and leader of Team Stronach, a party represented in the National Council) on the ongoing disintegration of his party. The Court criticized the lower court for disregarding the broader context and for artificially separating the person of the politician from the subject matter of the analysis.

The Court stated that “[t]he behavior of the politician … was therefore central to the focus of the analysis, which, among other things, assessed his influence on the ‘crumbling’ of the party ‘Team Stronach’. This quite obviously lies in the public interest.” [p. 13] The Court emphasized that when the interview addressed the co-responsibility and mistakes of the politician in this decline, referencing his past statements and prolonged absence from Austria, it was clear that the reference was not solely to the Summer Talk. The subject of the analysis thus included the person of the politician and his overall political conduct, including errors he may have committed, as well as the related public perception.

The Court further rejected the lower courts’ characterization of the remark as an unsubstantiated, purely polemical conclusion that served solely to discredit the politician without contributing to political analysis. It held that value judgments are an intrinsic and essential component of analytical commentary in political broadcasting, stating: “Value judgments are an essential component of an ‘analytical commentary’ […]. It therefore falls short when the Federal Administrative Court considers that the impugned commentary is per se not an objective/substantive engagement. If one were to follow the Federal Administrative Court in requiring that every single component of an analysis, taken by itself, constitutes an objective/substantive engagement, there would be no room left for value judgments. The essence of a value judgment is precisely that it is not accessible to verification.” [p. 14]

The Court found that the expression “plemplem” formed part of a concluding evaluative summary that was sufficiently linked to the factual basis established earlier in the broadcast. The Court observed that this colloquial term served as an exaggerated summation of behavior previously characterized as “confused” or “muddled” during the interview, and that no alternative expression could capture this assessment as pointedly and succinctly. The Court further reasoned that because the statement concerned the interpretation of potential voter opinion, demanding a factual-scientific term would be fundamentally misguided from the outset; it is entirely plausible and coherent that voters might summarize the described confused behavior with the word “plemplem,” particularly since they would certainly not choose an academic term. Moreover, the remark was presented as one possible short assessment from the perspective of some viewers, immediately balanced by a more positive alternative evaluation offered by the expert himself, further underscoring its evaluative rather than purely assertive character.

Relying on ECtHR jurisprudence, the Court reaffirmed that freedom of expression in political debate extends to statements that may offend, shock, or disturb, particularly where directed at public figures who must show a higher degree of tolerance. The Court stated: “In view of the standards that a top politician in the public eye must accept in terms of public debate and criticism, even if presented in a sharp, polemical and aggressive form […], the pointed and polemical choice of words remains, in the overall context, within what is permissible under Art. 10 ECHR in the context of a statement such as that made by *** in the present context towards a politician.” [p. 26] The Court emphasized that the primary task of a political expert is to incorporate possible public perceptions, even critical or offensive ones, into analysis. It would disproportionately restrict expert analysis if it had to be limited from the outset to positive or defensive, restrained opinions.

Additionally, the Court’s reasoning entertained the distinction between different types of broadcast content under the ORF Act. The Court clarified that the political scientist, as an invited expert who was not integrated into the editorial team, fell under § 4(5) para. 2 ORF-G (transmission of third-party commentaries) rather than § 4(5) para. 3 ORF-G (ORF’s own commentaries). In contrast to the Federal Administrative Court’s view, the Court determined that the expert’s statements could not be characterized as ORF’s own commentary or analysis; instead, by inviting him to participate, ORF was carrying out its statutory function of conveying comments, viewpoints, and critical statements of relevance to the general public under the provision governing third-party contributions. The Court emphasized that the expert’s role as a “studio guest” and interview partner distinguished him from journalistic staff, even though viewers perceived him as an expert based on his scientific expertise.

Finally, on the duty to distance, the Court rejected the lower courts’ finding that the moderator was required to promptly distance herself or create immediate balance. Since the remark itself was protected expression and did not exceed the bounds of permissible political commentary, no such editorial duty arose under the circumstances of a live expert analysis. The Court highlighted the practical realities of live broadcasts: “In principle, as the European Court of Human Rights has stated on several occasions […], there is no obligation for a journalist to ‘distance’ himself from the content of a statement made by a third party, which he reproduces in the form of a comment or quotation or which he receives as an answer in an interview situation, in the sense that the journalist would have to relativize statements of the third party or his counterpart because they ‘offend, shock or disturb’.” [pp. 26-27]

The Court acknowledged the practical realities of live broadcasting, noting that Austrian media law expressly recognizes exclusion grounds for live broadcasts based on the consideration that holding media owners liable for statements that may not be preventable under certain circumstances and which can no longer be editorially processed would be excessive. The Court observed that the challenged statement was made during a live broadcast and that no employee or agent of the broadcaster had failed to exercise the requisite journalistic due care contemplated by these media law exclusions. The Court further emphasized that requiring moderators to constantly evaluate and relativize statements made by interview partners would fundamentally misconceive the concept of a competition of free expression that underlies Article 10 ECHR.

Accordingly, the Court held that the contested decision interfered with the freedom of expression and broadcasting freedom of the complaining ORF, as protected by Article 10 ECHR.

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