Content Regulation / Censorship, Defamation / Reputation, Protection of Sources
Marena v. Auler
Closed Expands Expression
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The European Court of Human Rights found that the defamation conviction of a journalist who had criticized a politician, violated his right to freedom of expression. Peter Lingens, an Austrian journalist, had accused Bruno Kreisky the President of the Austrian Socialist Party, for his accommodating attitude toward former Nazis who had continued to take part in Austrian politics. The European Court reasoned that politicians and other public officials should tolerate a high degree of criticism due to their public position in democratic societies. Furthermore, the Court noted that the journalist was covering political issues that were of immense public interest to Austrians and that censuring the articles would deter other journalists from contributing to public discussion.
On October 9, 1975, four days after the Austrian general elections, an accusation surfaced in a television interview that the President of the Liberal Party, Friedrich Peter had served in the first SS infantry brigade during the Second World War. Next day, Kreisky, the retiring Chancellor and the President of the Austrian Socialist Party, which had won the parliamentary majority with the possibility of forming a coalition with the Liberal Party, was questioned about the accusation. In the interview, Kreisky appeared to vigorously support Peter.
This led the Austrian journalist Lingens two publish two separate articles, questioning Kreisky’s backing of Peter. In his first piece, he said that it was unacceptable for former Nazis to participate in the country’s political process and criticized Kreisky for supporting Peter. In the second article, he said: “In truth Mr. Kreisky’s behaviour cannot be criticised on rational grounds but only on irrational grounds: it is immoral, undignified.” [para. 15] Lingens further accused the retiring Chancellor of being indifferent towards the victims of the Nazis. He concluded that “if Bruno Kreisky had used his personal reputation, in the way he used it to protect Mr. Peter, to reveal this other and better Austria, he would have given this country – thirty years afterwards – what it most needed to come to terms with its past: a greater confidence in itself.” [para. 16]
Subsequently, Kreisky brought two private defamation prosecutions against the journalist under Articles 111 and 112 of the Austrian Criminal Code. On March 26, 1979, the Vienna Regional Court found Lingens guilty of defamation for writing “the basest opportunism,” “immoral,” and “undignified” expressions. Taking into account mitigating circumstances, including the fact that the articles intended to voice political criticism of a politician, the court imposed a fine in the amount of 20,000 Schillings and ordered the confiscation of the articles. Later, the Vienna Court of Appeal set aside the judgment pending the question of whether Kreisky was entitled to bring a private prosecution.
On remand, the Vienna Regional Court first concluded that the retiring Chancellor was entitled to bring the action because he was criticized not in his official capacity but as the head of a political party and as a private individual. As to the merits, the court confirmed its previous judgment against Lingens. Lingens then appealed to the European Court of Human Rights, Lingens argued, inter alia, that his conviction infringed his freedom of expression to a degree incompatible with the fundamental principles of a democratic society.
The European Court of Human Rights held that the conviction for defamation amounted to an interference with Lingens’ right to freedom of expression, which could be justified only if it was “prescribed by law” and “necessary in a democratic society” in pursuit of a legitimate aim. The Court held that the interference was indeed prescribed by law and pursued the legitimate aim of protecting the reputation of others. At stake was whether it was also “necessary in a democratic society”.
Lingens had argued that as a political journalist, he had the duty to express his views and criticize the retiring Chancellor, “who was himself accustomed to attacking his opponents had to expect fiercer criticism than other people.” [para. 37] In response, the Government of Austria contended that “freedom of expression could not prevent national courts from exercising their discretion and taking decisions necessary in their judgment to ensure that political debate did not degenerate into personal insult.” [para. 37]
At the outset, the Court explained that the notion of “necessary” implies the existence of a pressing social need. While States enjoy a certain margin of appreciation in assessing whether such a need exists, the Court’s task is to give the final ruling on whether a restriction is compatible with the right to freedom of expression as protected by Article 10. Accordingly, the Court does not confine itself to the decisions of domestic courts in isolation. Rather, “it must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written.” [para. 40]
As applied to the instant case, the Court emphasized the particular importance of the press in imparting “information and ideas on political issues just as on those in other areas of public interest.” [para. 41] Notwithstanding the fact the press may not overstep its boundaries, including the protection of the reputation of others, the limits of acceptable criticism by the press are “wider as regards a politician as such than as regards a private individual.” [para. 42] The Court further held that even though politicians are equally entitled to the protection of their reputation even when they are not acting in their private capacity, “the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.” [para. 42]
The Court went on to observe that the Austrian courts had found that the impugned articles contained certain undignified expressions which could harm Kreisky’s reputation. At the same time, the Court underscored that the pieces concerned heated political issues of public interest in Austria surrounding the participation of former Nazis in the governance of the country after the general elections. In addition, the Court was of the opinion that the monetary penalty and subsequent confiscation of the articles “would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community.” [para. 44] Lastly, the Court agreed with Lingens that his observations expressed in the articles were value judgments, made in the exercise of his right to freedom of expression, and that the national courts of Austria erred by requiring him to establish the truth of these statements. The Court explained that while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Furthermore, the Court found that Lingens’ political opinions were undisputed and had been expressed in good faith.
Based on the foregoing reasons, the European Court of Human Rights ruled that the conviction of Lingens amounted to a breach of the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is considered one of the European Court of Human Rights ‘classic’ judgments and establishes that politicians should expect far greater criticism of their actions and their functioning than ordinary individuals. Defamation laws should therefore grant them less protection instead of enhanced protection, as was the case in many countries at the time. The judgment remains a cornerstone of the European Court of Human Rights’ freedom of expression jurisprudence.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and form authoritative precedent on the interpretation of the right to freedom of expression for other States Parties to the European Convention on Human Rights.
This judgment has been cited by courts around the world and is regarded as persuasive authority in freedom of expression law.
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