Oberschlick v. Austria (no. 2) (47/1996/666/852) 1 July 1997: Political discussion -- Applicant's article: could be considered polemical, but did not on that account constitute gratuitous personal attack as he had provided an objectively understandable explanation, derived from speech of politician

I. Article 10 of the Convention

The judicial decisions challenged before the Court had to be considered in light of case as a whole, including article in question and circumstances in which it had been written - politician concerned clearly intended to be provocative and consequently to arouse strong reactions.

Applicant's article: could be considered polemical, but did not on that account constitute gratuitous personal attack as he had provided an objectively understandable explanation, derived from speech of politician concerned, for using term complained of - constituted part of political discussion provoked by that speech and amounted to an opinion.

Calling a politician a Trottel (idiot) in public might offend him - in instant case, however, word did not seem disproportionate to indignation knowingly aroused by politician concerned - article's polemical tone: protected by Article 10.

Conclusion: violation (seven votes to two).

I. The circumstances of the case

7. Mr Oberschlick, a journalist living in Vienna, was at the material time editor of the periodical Forum.

8. On 7 October 1990 on the occasion of a "peace celebration" (Friedensfeier) at the foot of the Ulrichsberg, Mr Haider, leader of the Austrian Freedom Party (Freiheitliche Partei Österreichs - FPÖ) and Governor (Landeshauptmann) of the Land of Carinthia, gave a speech glorifying the role of the "generation of soldiers" who had taken part in the Second World War. In it he said that all soldiers, including those in the German army, had fought for peace and freedom and that people should therefore not differentiate between "good" and "bad" soldiers of that generation but should rather be grateful to all of them for having founded and built today's affluent, democratic society. Mr Haider then criticised an Austrian writer who had, in his view, disparaged all those killed in the Second World War, and continued as follows:

"Ladies and gentlemen, freedom of opinion is taken for granted in a democracy, but it reaches its limits where people lay claim to that spirtitual freedom they would never have got if others had not risked their lives for them so that they may now live in democracy and freedom."

9. This speech was reproduced in full in Forum and commented on by the applicant and the aforementioned Austrian writer. Mr Oberschlick's passage, entitled "PS.: 'Trottel' statt 'Nazi'" ("PS.: `Idiot' instead of `Nazi'"), read as follows:

"I will say of Jörg Haider, firstly, that he is not a Nazi and, secondly, that he is, however, an idiot. That I justify as follows:

[L.] [...] wholly convinced me that being called a Nazi is an advantage to Jörg Haider. That is why I ask my friends to forgive my abstaining from using that description for that very good reason.

...

As [Haider] denies those of us who in his eyes did not have the legitimising good fortune (legitimierende Glück) to have risked our lives in the uniform of honour (Ehrenkleid) of the Third Reich for the Hitlerian freedom to wage wars of conquest (Raubkrieg) and impose the final solution, [and as he denies us] the right "to lay claim to a purely `spiritual' freedom of opinion", let alone a "political freedom", and he himself has

never had the good fortune to serve in the uniform of honour of the SS or the German army (Wehrmacht), thus excluding himself along with the vast majority of Austrians from any exercise of freedom, he is, in my eyes, an idiot."

10. On 26 April 1991 Mr Haider brought an action for defamation (üble Nachrede) and insult (Beleidigung) against the applicant in the Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the Regional Court"). He also applied for an order for the immediate seizure of the relevant issue of the periodical and for an announcement of the institution of proceedings to be published in Forum.

11. On 30 April 1991 the court allowed the application for an announcement to be published, but on 21 May 1991 Mr Oberschlick appealed against that decision.

12. On 23 May 1991 the court found the applicant guilty under Article 115 of the Criminal Code (see paragraph 19 below) of having insulted Mr Haider and sentenced him to pay twenty day-fines of 200 Austrian schillings (ATS), with ten days' imprisonment in default. In the court's view, the word Trottel (idiot) was an insult (Schimpfwort) and could only ever be used as a disparagement (Herabsetzung); it therefore could never be used for any objective criticism (sachliche Kritik). In the written version of the judgment the court ordered the seizure of the relevant issue of Forum.

 

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

24. Mr Oberschlick argued that the decisions in which he was held to be guilty of insult had infringed his right to freedom of expression as secured in Article 10 of the Convention, which provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

25. His conviction by the Vienna Regional Court on 23 May 1991 (see paragraph 11 above), upheld by the Vienna Court of Appeal on 25 March 1992 (see paragraph 18 above), had indisputably amounted to an "interference" with the exercise of freedom of expression.

Those appearing before the Court also agreed that the interference was "prescribed by law" - Article 115 of the Criminal Code (see paragraph 19 above) - and its purpose was to protect "the reputation or rights of others", within the meaning of Article 10 § 2.

The oral argument dealt with the question whether the interference was "necessary in a democratic society" in order to achieve that end.

26. In the applicant's submission, the word Trottel had not been used by chance; it was the only word that could both draw public attention to how outrageous the arguments in Mr Haider's speech were and sum up the criticism of him in the article in issue. Both the words and the tone had been chosen to show Mr Haider and readers just how illogical, unreasonable and dangerous his words at the Ulrichsberg had been in that they were such as to deprive the speaker himself and most citizens of the right to freedom of opinion. That being so, it was in the public interest to warn people at large against the ideas of the person who was at that time Governor of the Land of Carinthia and was even regarded as a possible candidate for the position of Federal Chancellor. In sum, the word Trottel had been directed not against the speaker but against what he had said, as any average reader had been able to see.

27. The Commission accepted that the word in issue could be considered insulting but was of the view that in the circumstances of the case and regard being had in particular to the views expressed by Mr Haider, the applicant's conviction represented a disproportionate interference with the exercise of his freedom of expression.

28. The Government pointed out that the conviction in question related not to Mr Oberschlick's criticism of Mr Haider but merely to the use of the word Trottel. Far from being able to be regarded as the expression of an opinion, it was nothing but an insult used to denigrate and disparage an individual in public. That was not acceptable in a democratic society, even where the person being attacked had defended extreme opinions which were intended to provoke. In order to maintain a minimum level in political debate, certain basic rules had to be observed. Insults, denigrations and offensive language could not enjoy general, unlimited protection under the Convention as they made no positive contribution to the political development of society. They were more likely to poison the climate by prompting a desire for retaliation. In its own interests a democratic society could not tolerate such an escalation.

29. The Court reiterates that, subject to paragraph 2 of Article 10 of the Convention, freedom of expression is applicable not only to "information" and "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

These principles are of particular importance with regard to the press. While it must not overstep the bounds set, inter alia, for "the protection of the reputation of others", its task is nevertheless to impart information and ideas on political issues and on other matters of general interest.

As to the limits of acceptable criticism, they are wider with regard to a politician acting in his public capacity than in relation to a private individual. A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, in particular, the Oberschlick v. Austria (no. 1) judgment of 23 May 1991, Series A no. 204, pp.25-26, §§ 57-59, and the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 17, § 37).

30. The Court notes that Mr Oberschlick was convicted for having insulted Mr Haider by describing him as a Trottel in the title and in the main body of the article he published in Forum. The Regional Court considered that the word itself was insulting and that its mere use was enough to justify the conviction (see paragraph 12 above). The Vienna Court of Appeal took the view that the mere fact that the word in question also appeared in the title of the article made it insulting since readers who had read neither the article nor Mr Haider's speech and the comments on it would link the word not with what Mr Haider had said but with his own person (see paragraph 18 above).

31. The Court disagrees. It wishes to point out in this connection that the judicial decisions challenged before it must be considered in the light of the case as a whole, including the applicant's article and the circumstances in which it was written see the Oberschlick (no. 1) judgment cited above, p. 26, § 60).

The most important of these is Mr Haider's speech, which Mr Oberschlick was reporting on in his article. In claiming, firstly, that all the soldiers who had served in the Second World War, whatever side they had been on, had fought for peace and freedom and had contributed to founding and building today's democratic society and in suggesting, secondly, that only those who had risked their lives in that war were entitled to enjoy freedom of opinion, Mr Haider clearly intended to be provocative and consequently to arouse strong reactions.

32. As to Mr Oberschlick's article, it was published together with the speech in question and an article by a writer who was also reacting to what Mr Haider had said. In his article the applicant briefly explained, in some twenty lines, why Mr Haider's remarks had prompted him to describe him as a Trottel rather than as a Nazi - mainly because in his speech Mr Haider had excluded himself from enjoying any freedom of opinion.

33. In the Court's view, the applicant's article, and in particular the word Trottel, may certainly be considered polemical, but they did not on that account constitute a gratuitous personal attack as the author provided an objectively understandable explanation for them derived from Mr Haider's speech, which was itself provocative. As such they were part of the political discussion provoked by Mr Haider's speech and amount to an opinion, whose truth is not susceptible of proof. Such an opinion may, however, be excessive, in particular in the absence of any factual basis, but in the light of the above considerations that was not so in this instance (see, as the most recent authority, the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions - 1997-.., p. ..., § 47).

34. It is true that calling a politician a Trottel in public may offend him. In the instant case, however, the word does not seem disproportionate to the indignation knowingly aroused by Mr Haider. As to the polemical tone of the article, which the Court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see among other authorities, the Oberschlick (no. 1) judgment cited above, p. 15, § 57).

35. In conclusion, the Court considers that the necessity of the interference with the exercise of the applicant's freedom of expression has not been shown.

There has therefore been a breach of Article 10.

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