Defamation covered by Article 8 of the European Convention on Human Rights

There has been ongoing debate in the UK and across Europe over the past years whether Article 8 of the European Convention - that has been applied regularly in respect of Privacy actions - also covers reputation and defamation actions. As it protects the 'right to respect' over a family and private right it has been argued in the English courts that Article 8 should become engaged where such respect has been violated and such violation does not also have to be a violation of privacy.

This view has been confirmed by the case of Pfeifer v Austria - judgment issued 15/11/07

Details below:

Press release issued by the Registrar


The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Pfeifer v. Austria (application no. 12556/03).

The Court held, by five votes to two, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the Austrian courts’ failure to strike a fair balance between the protection of freedom of expression and the right of the applicant to have his reputation safeguarded.

Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Pfeifer 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 for costs and expenses. (The judgment is available only in English.)

1. Principal facts

The applicant, Karl Pfeifer, is an Austrian national who lives in Vienna. He is a freelance journalist. From 1992 to 1995 he was the editor of the official magazine of the Vienna Jewish community.

In February 1995 Mr Pfeifer published a commentary criticising in harsh terms a professor who had written an article alleging that the Jews had declared war on Germany in 1933, and which trivialised the crimes of the Nazi regime. The professor brought defamation proceedings against the applicant, who was ultimately acquitted in May 1998 when the courts found that his criticism constituted a value judgment which had a sufficient factual basis.

In April 2000, criminal proceedings under the National Socialism Prohibition Act were brought against the professor by the Public Prosecutor on account of his article. He committed suicide shortly before his trial.

In an article from June 2000, the weekly Zur Zeit referred to the Mr Pfeifer’s commentary, alleging that it had unleashed a manhunt which had eventually resulted in the death of the victim. The applicant brought unsuccessful defamation proceedings against the publishing company owning Zur Zeit. While the first-instance court had found that the statement was defamatory, in October 2001 the appellate court found that it was a value judgment which was not excessive.

Meanwhile, in February 2001 the chief editor of Zur Zeit had addressed a letter to the subscribers asking them for financial support and claiming that a group of anti-fascists was trying to damage the weekly by means of disinformation in the media and by instituting criminal proceedings and civil actions. The letter stated again that Karl Pfeifer and a number of other people were members of a “hunting” association which had chased the professor to his death. The applicant brought a second set of defamation proceedings. His action was dismissed in August 2002, as the appellate court held that the principles and considerations set out in its previous judgment of October 2001 applied.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 7 April 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Loukis Loucaides (Cypriot), President,
Nina Vaji (Croatian),
Anatoli Kovler (Russian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
Heinz Schäffer (Austrian), ad hoc judge,

and also Søren Nielsen, Section Registrar.

3. Summary of the judgment2


Relying on Article 8 (right to respect for private and family life), Mr Pfeifer complained that the Austrian courts failed to protect his reputation against defamatory statements made by the chief editor of Zur Zeit.

Decision of the Court

Article 8

The Court held that a person’s right to protection of his or her reputation was encompassed in Article 8 as being part of the right to respect for private life.

The Court reiterated that statements that shock or offend the public or a particular person were indeed protected by the right to freedom of expression under Article 10 (freedom of expression). However, the statement here at issue went beyond that, claiming that the applicant had caused the professor’s death by ultimately driving him to commit suicide. Although it was undisputed that the applicant had written a critical commentary on the professor’s article in 1995 and that, years later, in 2000, the professor had been charged under the National Socialism Prohibition Act in relation to this article and had committed suicide, no proof had been offered for the alleged causal link between the applicant’s article and the professor’s death. By writing that, the chief editor’s letter overstepped acceptable limits, because it in fact accused Mr Pfeifer of acts tantamount to criminal behaviour.

Even if the statement were to be understood as a value judgment, it lacked a sufficient factual basis. The use of the term member of a “hunting” association implied that the applicant was acting in cooperation with others with the aim of persecuting and attacking the professor. There was no indication, however, that Mr Pfeifer, who had merely written one article at the very beginning of a series of events and had not taken any further action thereafter, acted in such a manner or with such an intention. Moreover, it had to be noted that the commentary written by the applicant, for its part, had not transgressed the limits of acceptable criticism.

The Court was therefore not convinced that the reasons advanced by the domestic courts for protecting freedom of expression outweighed the right of the applicant to have his reputation safeguarded. There had accordingly been a violation of Article 8.

Judges Loucaides and Schäffer expressed dissenting opinions, which are annexed to the judgment.

Mediabeak thinks this is a significant judgment that will back the trend to argue Article 8 violation in defamation actions.

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