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Nikowitz & Verlagsgruppe News GmbH v Austria - 5RB Barristers

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Court: European Court of Human Rights

Judge: Rozakis (President), Loucaides, Vajic, Kovler, Steiner, Hajiyev, Spielmann (Judges) and Nielsen (Section Registrar)

Date of judgment: 22 Feb 2007 Summary: Human rights - Freedom of expression - Article 10, European Convention on Human Rights - Necessary in a democratic society - Relevant and sufficient reasons for interference - Defamation - Satirical commentary - Statement that views not in fact expressed

Download: Download this judgment

Facts N was the author of an article in Profil!, a weekly magazine published by V, concerning the Austrian nation’s reaction to an injury to Hermann Maier, the country’s ski-racing champion. It included the words “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’.” Eberharter brought proceedings for defamation. The domestic court held that although the article was satirical, some readers would not have understood it in that way and would have believed there to be some basis for the statement. It found for Eberharter and required N and V to pay damages and costs and to publish extracts from its judgment. Their domestic appeal having failed, N and V appealed to the European Court complaining that the domestic judgments violated their right to freedom of expression, contrary to Article 10.

Issue Whether the admitted interference with N and V’s rights under Article 10 was necessary in a democratic society.

Held Finding a violation of Article 10; the domestic courts had not given relevant and sufficient reasons to justify its interference. The article was written in an ironic and satirical style and meant as a humorous commentary, but it sought to make a critical contribution to an issue of general interest, namely society’s attitude to a sports star. The Court rejected the suggestion that the average reader would be unable to grasp the text’s satirical character and the humorous element of the impugned passage. The words could be understood as a value judgment on Eberharter’s character, expressed in the form of a joke. The feelings attributed to him, if actually expressed, would have damaged his image, but that was not true of this passage, which clearly stated that he had made no such statement. The impugned passage remained within the limits of acceptable satirical comment in a democratic society. It was irrelevant that N had been sentenced to only a minor suspended penalty.

Comment In this decision the Strasbourg court demonstrates a welcome unwillingness to imbue the reasonable reader, in relation to whom the meaning of allegedly defamatory words must be assessed, with characteristics akin to those of the “moron in a hurry” beloved of defendants in trade mark infringement actions. It would have been a tremendous blow to satirical publications if their articles were to be judged on the basis of “unfocused” readers who could not understand a clear statement to the effect that a man had not in fact expressed certain views.

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