Defamation / Reputation
Afanasyev v. Zlotnikov
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The European Court of Human Rights (ECtHR) unanimously held that a defamation conviction and penalty for authoring and publishing a satirical article about the injury of a celebrated Austrian skier excessively infringed the applicants’ right to freedom of expression. Following defamation proceedings by a rival Austrian skiing champion, the Austrian judiciary held that the article was neither discernibly satirical nor fictitious to the average reader and as such, had caused the defendant significant damage to his reputation. The ECtHR held that the Austrian judiciary’s interference with the applicants’ right to freedom of expression was unnecessary, not “relevant or sufficient” and the statement in question was within the limits of satirical commentary acceptable in a democratic society. Crucially, when considering the statement as a whole, the Court recognized the pertinent characteristics of a satirical article and its ability to contribute to an issue of general interest, namely that of the attitude of a society to sports stars. Further, the ECtHR held that their main assessment of the interference also had to consider not on whether the judiciary had displayed moderation in penalizing the applicants, but on whether there were justifications for any penalty at all.
The two applicants were Rainer Nikowitz, an Austrian national and a journalist, and Verlagsgruppe News GmbH, an Austrian-based company that owns and publishes a weekly magazine titled “Profil”. In its September 3, 2001 issue, Profil published a two-page article by Nikowitz regarding the media coverage and public reaction to a recent accident in which Hermann Maier, the Austrian ski-racing champion, had injured his leg. The article was titled “Ouch” with the sub-heading “Hermann Maier. Austria is limping. Rainer Nikowitz too is suffering from acute phantom pains as a result of the national broken leg,” and was accompanied by a portrait of Maier captioned “Hero Hermann’s leg is causing millions of Austrians pain” [para 5]. Intended as an ironic commentary, the article cited statements from Austrian and German newspapers, Maier’s webpage, and created fictitious quotes that it attributed to Austrian ski-racing champion, Stefan Eberharter. Eberharter’s fake commentary read: “Even Maier’s dear friend Stefan Eberharter had to say something, and he presumably decided against it at the last moment: ‘Great, now I’ll win something at last. Hopefully the rotten dog will slip over on his crutches and break his other leg too’” [para 6].
Following the article’s publication, Eberharter requested that Profil publish a response to combat any “negative image” and public relations issues that may have resulted from Nikowitz’s satirical commentary, which he submitted “suggested disdainful behavior towards a colleague” [para 7]. Following their refusal, Eberharter initiated a private prosecution for defamation against Nikowitz and brought a compensation claim under the Media Act against Verlagsgruppe News GmbH. Eberharter asserted that sponsor companies contributed substantially to his income, and the article’s adverse publicity (suggesting he was problematically competitive and disdainful) thus threatened a “significant loss of value in his standing as a communication medium” [para 7].
On December 6, 2001, the Vienna Regional Criminal Court convicted Nikowitz of defamation under section 111 of the Criminal Code. He was sentenced to a fine, ordered to pay the costs of the proceedings, and was suspended for a probationary period of three years. Verlagsgruppe News GmbH was held jointly and severally liable for the fine and costs of the proceedings, and was ordered to pay compensation to Eberharter under section 6 of the Media Act. When assessing whether Eberharter had suffered reputational damage, the Court reasoned that it should assess Nikowitz’s article in the samemanner in which an average reader would understand it. It noted that while a majority of Profil’s readers could be expected to ascertain the satirical nature of the article (particularly Eberharter’s excerpt), the same could not be said for readers who read the article perfunctorily and without concentrating on its nuances. The Court emphasized that the relevant passage, which conveyed “jealousy, rudeness and schadenfreude” [para 9] as Eberharter’s characteristics, was positioned towards the beginning of the article and did not recur elsewhere in it. The remainder of it was largely devoted to informing the readers about the coverage of the accident across other media. The Court also noted that, to a reader who had missed the markers of humor in the article, the statement would not seem exaggerated or far-fetched due to Eberharter’s reputation as the “eternal bridesmaid” [para 9] to renowned champion Maier.
The applicants took this decision to the Vienna Court of Appeal. They argued, firstly, that the Court ought not to have applied the standard of a “hasty and unfocused reader” [para 10] in assessing how the excerpt would be perceived. Secondly, they asserted that their right to freedom of artistic expression clearly outweighed Eberahrter’s personal interests, given the exaggerated and satirical nature of the article pertaining to a subject of public interest. Further, the applicants added that Profil often published articles by Nikowitz, and as such, readers were well acquainted with the humorous and satirical style of his columns.
The Court dismissed their appeal on June 26, 2002, by concluding that Eberharter’s personal interests outweighed the applicants’ right to freedom of artistic expression. In its reasoning, the Court noted that the article demanded a “very high level of intelligence and concentration” of its readers [para 11]. As such, the Vienna Regional Criminal Court was right to consider those who may only skim the first few paragraphs of the article without understanding neither its satirical nature nor the fictitious nature of Eberharter’s supposed statements. The Court particularly emphasized the reader’s assumption given Eberharter was Maier’s main opponent and thus a natural beneficiary of his injury. Indeed, the Court believed that the article communicated to the readers a negative image of Eberharter, as a “most egocentric” athlete who “would stop at nothing” to win, and wished his competitors harm [para 11].
On February 3, 2003, the applicants lodged an application with the ECtHR against the Republic of Austria (the defendant), alleging a breach of their right to freedom of expression under Article 10 of the Convention.
On May 22, 2007, the Court unanimously held that the applicants’ right to freedom of expression under Article 10 of the Convention had been violated. Because both parties had already agreed that the Austrian domestic courts’ interference with the applicants’ right to freedom of expression was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others, the main issue left to be determined by the Court was whether the interference was necessary in a democratic society. This determination involved a two-part inquiry – first, whether the justifications for the interference put forth by the domestic authorities were “relevant and sufficient”, and second, whether the measures taken were “proportionate” to the legitimate aim pursued (per paragraph 2 of Article 10 of the Convention).
The applicants submitted that their article was intended to critique the “national hysteria” [para 18] surrounding Maier’s accident. They argued that the commentary capturing Eberharter’s supposed thoughts about Maier’s accident was clearly meant to satirically convey sentiments any athlete might secretly feel about the injury of their strong rival. This was all the more human and imaginable given the success enjoyed by Eberharter in ski-races post Maier’s injury, and did not carry connotations of any “reprehensible character traits” [para 18] possessed by him. But regardless of the foregoing argument, the applicants argued that the commentary was clearly drafted to be humorous, exaggerated and fictional, even to the hastiest of readers. Moreover, the title of the article indicated its humorous approach as did the other fictitious satirical remarks made in it – such as the comment that Maier’s first replaced bandage had been interviewed by an ORF reporter, or that God contacted Maier to ask for help [para 17]. Importantly, the applicants emphasized that readers had come to expect Nikowitz’s articles to employ humor and satire, as his satirical essays were a characteristic feature of Profil. They critiqued the Austrian courts’ assessment of the statement by reference to the standard of unfocused, hasty readers who may misunderstand the article, crucially asserting that not only were they not responsible for any ignorant readers, but also that their right under Article 10 of the Convention could not be restricted on such assessment.
The defendant agreed that an interference with the applicants’ right to freedom of expression had clearly occurred. However, this interference was prescribed by law, pursued the legitimate aim of protecting the reputation or rights of others, and was necessary and proportionate to the aim pursued (per the requirements of the Convention). The defendant contended that the quote attributed to Eberharter was the sole fictitious statement in the article, while the remainder of the article consisted of headlines and passages from other reportage about the accident. Relying on the decision of the domestic courts, the defendant reasoned that in such a context, only a “highly concentrated” reader could have possibly realized the article’s fictitious and satirical nature [para 19]. The defendant further submitted that the excerpt conjured an image of Eberharter as a jealous competitor who was inappropriately gleeful about Maier’s accident. Even if the commentary was satirical, it nevertheless transgressed the limits of the right to freedom of expression under Article 10 of the Convention in its blatantly negative image of Eberharter without any factual substantiation. Further, the defendant claimed that the article was not contributory to or of significant public interest. As such, Eberharter’s right to protection of his reputation as a sportsman outweighed the applicants’ interests in freely expressing themselves through the impugned statement, and that the interference was proportionate given the relatively minor penalties imposed on Nikowitz and Verlagsgruppe News GmbH.
The Court reiterated that, in order to determine whether interference with the right of a party could be considered necessary in a democratic society per Article 10 of the convention, it must first ascertain whether the interference responded to a “pressing social need” [para 21]. While states do enjoy a margin of appreciation in assessing the existence of that need (and in restricting a right in pursuance of it), discretion is limited by European supervision. The ECtHR can, thus, conclusively rule on the compatibility of an “interference” or “restriction” with the right to freedom of expression protected by Article 10.
However, given that the role of the ECtHR is to review rather than to replace the decisions of the domestic authorities, the assessment of any alleged interference with the right to freedom of expression must be undertaken within the wider context of the case. Particularly, the Court must undertake two inquiries – first, whether the justifications offered by the domestic authorities are “relevant and sufficient”, and second, whether the measures taken are “proportionate to the legitimate aims pursued” [para 23]. In carrying out this assessment, the Court has to attend to whether the domestic authorities have taken their decisions pursuant to an acceptable assessment of the relevant facts, and whether the standards applied by them are in compliance with those embodied by Article 10 (as per Cumpana and Mazare v Romania ECHR  33348/96).
The relevance and sufficiency of the Austrian courts’ interference
The Court first considered whether the reasons offered by the Austrian domestic courts for the interference with the applicants’ right to freedom of expression were “relevant and sufficient”. The Court noted that the article was clearly written in a satirical and ironic style, and was accompanied by a similarly humorous headline and caption. As such, the Profil article was blatantly intended to be a humorous commentary on the public and media attention of Maier’s injury, and that it sought to make a “critical contribution to an issue of general interest, namely society’s attitude towards a sports star” [para 25]. Indeed, the Court was not swayed by the notion of a hasty, unfocused reader failing to grasp the satirical nature of the article and Eberharter’s fictitious quote. Instead, it expressly departed from the domestic courts’ assessment of the average reader’s inability to discern the humorous, exaggerated and satirical nature of the piece. It added that the “passage could at most be understood as the author’s value judgment on Mr. Eberharter’s character, expressed in the form of a joke” [para 25] about what he “could have said but did not actually say” [para 25].
The Court conceded that a statement conveying that a sportsman was truly gleeful about the benefits to be reaped from his competitor’s accident, and wishing him further harm, would indeed cause serious damage to their image [para 26]. However, in this instance, the Court held that the humorous commentary clearly suggested Eberharter did not indeed reflect his true feelings on the incident. Moreover, the Court noted that Eberharter had already publicly commented on Maier’s accident, and “obviously” did not say the words in the Profil column [para 26]. On the basis of such reasoning, the Court concluded that the justifications offered by the Austrian domestic authorities were not “relevant and sufficient”, and that the excerpt about Eberharter sat rightly within the limits of satirical commentary acceptable in a democratic society.
Additionally, the Court rejected the defendant’s argument that the applicants’ penalties for defamation reflected only a moderate interference with their right to freedom of expression. Relying on Lopes Gomes da Silva v. Portugal ECHR  37698/97, the Court pertinently noted that as regards Nikowitz “what matters is not that he was sentenced to a relatively minor suspended penalty, but that he was convicted at all” [para 27].
The Court concluded that the interference with the applicants’ right to freedom of expression was not necessary for the protection of the reputation or rights of others in a democratic society. As such, Eberharter’s personal interests could not outweigh the applicants’ right to freedom of expression. Accordingly, a violation of the applicants’ rights pursuant to Article 10 of the Convention was pronounced. The Court ordered the defendant to pay the applicants EUR 7,058.13 as pecuniary damages and EUR 4,831.40 as costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ECtHR decision expands expression by recognizing the concept of a “fictitious interview” (para 174, Case Guide of the ECtHR on Article 10) as a variant of a satirical expression which is capable of offering a social commentary and contributing critically to an issue of general interest. Because satire by its very nature is likely to exaggerate, provoke, and agitate, this decision illustrates that a certain leniency has to be exercised by courts when determining the merits of its protection. Though the Court doesn’t explicitly mention any such link in its reasoning, some scholars have implied the Court’s natural consideration of the relationship between the tone employed in the impugned expression and its impact on the reputation of the aggrieved. Smet in particular notes that if the tone of a statement (such as that of the applicants) is clearly satirical, exaggerated and/or humorous, restricting it deprives the applicants of the right to freedom of expression while having an arguably minor impact on the aggrieved and their reputation. Consequently, the ECtHR’s decision in this case conveys that caution must be exercised by domestic authorities in interfering with the right of the press to employ satire as a means of expression and that the ECtHR will certainly examine any such interference carefully. This decision is also reflective of the important distinction previously made by the ECtHR between facts and value judgments in cases involving satirical expressions, aimed at ascertaining the permissible limits of satirical or humorous forms of expression in democratic societies (para 191, Case Guide of the ECtHR on Article 10). However while there is much cause to welcome this decision for the way in which it expands expression, its authoritative and sweeping declaration of the applicants’ “apparent” or “obvious” humour is not necessarily legally sound, particularly as the Court itself lacks objective criteria for the identification of or a consistent approach to the manner in which to deal with such texts (Godioli).
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