State Failure to Adequately Protect from Defamation a Violation of the Right to Privacy

Pfeifer v Austria [2007] ECHR 12566/03 (15 November 2007)

Summary

In a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life.  The judgment also considered the balance between the right to private life and reputation, on the one hand, and the right to freedom of expression on the other.

Facts

In 1995, the applicant published an article in which he harshly criticised P for writing an anti-Semitic article.  P attempted to sue the applicant for defamation in 1998, but failed.

In April 2000, the Vienna Public Prosecutor’s Office charged P under the National Socialism Prohibition Act in relation to the 1995 article.  However, P committed suicide shortly before the trial began.

In June 2000, M, the editor-in-chief of a right-wing magazine, published an article alleging that the applicant was part of a ‘hunting society’ that had caused P to take his own life.  In 2001, the applicant sued the magazine for defamation, though was unsuccessful.

In the meantime, M wrote an open letter to subscribers of his magazine asking for financial support.  In this letter, he again alleged that applicant was part of a ‘hunting society’ that drove P to his death.  The applicant instituted a second set of defamation proceedings, which failed on the basis that M’s open letter was protected by art 10 of the Convention, which protects the right to freedom of expression.

The applicant lodged proceedings against Austriain the European Court, alleging a breach of art 8 of the Convention for failure to protect his reputation against defamatory allegations made by M.

Decision

Majority

The Court reiterated that the protection of ‘private life’ extends to the protection of one’s reputation, and to certain interactions in the public context even where the individual is a public figure.  The Court also reiterated the positive obligations of the State to ensure that an individual’s right to respect of private life is observed.

Where the situation is such that a publication affects an individual’s reputation, the Court is required to consider the balance between art 8 and the art 10 right to freedom of expression.  In this case, what fell for consideration was whether the publications by M were outside the scope of acceptable expression under art 10, and whether the Austrian courts failed to protect the applicant’s rights under art 8.

The Court disagreed with the findings of the Austrian courts, and held that the publication was defamatory.  M’s comments were not merely value judgments, as they clearly established a causal link between the applicant and P’s death, and accused the applicant of conduct tantamount to criminal behaviour.  Even if M’s comments were to be viewed as a value judgment, the Court considered that the comments lacked sufficient factual basis.

As such, the Court found a violation of art 8, and held that the Austrian courts failed to strike a fair balance between the competing interests involved.  The Court awarded the applicant €5,000 for non-pecuniary damage.

Judge Loucaides (dissent)

Judge Loucaides dissented on the basis that M’s comments did not exceed the limits of acceptable criticism under art 10.  In his Honour’s view, M’s comments could not be interpreted as attributing blame for P’s death to the applicant.  The term ‘hunting society’, while strong, did not signify a group who aimed to destroy P’s existence.  At most, the article connected the applicant with P’s decision to take his own life.

Judge Schäffer (dissent)

Judge Schäffer dissented on the basis thatAustriadid not fail to uphold the applicant’s rights under art 8.  It was not incorrect for the Austrian courts to place greater emphasis on M’s freedom of expression.  In his Honour’s view, the term ‘hunting society’ did not imply premeditation or that the applicant caused P’s death.  Although M’s comments harshly criticised the applicant for P’s death, they were not to be understood as an accusation of criminal behaviour.

Implications for the Victorian Charter

This decision may be relevant to a Victorian court’s consideration of ss 13 (protection of privacy and reputation) and 15 (right to freedom of expression) of the Charter.  In particular, the decision may assist a Victorian court’s interpretation of the Defamation Act 2005 (Vic) and the criminal defamation provisions of Part I of the Wrongs Act 1958 (Vic).

Meng He and Rebecca Pereira, Human Rights Law Group, Mallesons Stephen Jaques