European Court rules that Article 8 protects reputation as well as privacy - Press Gazette

European Court rules that Article 8 protects reputation as well as privacy

An individual’s right to protection of his or her reputation is encompassed in Article 8 of the European Convention on Human Rights as part of the right to respect for private life, the European Court of Human Rights has held.

It is a ruling which could have ramifications for UK libel law. Article 8 has already had a huge impact on the developing law of privacy in the UK.

The case concerned a complaint by freelance journalist Karl Pfeifer that Austria had violated his right to respect for private and family life because the courts failed to strike a fair balance between the protection of freedom of expression and his right to have his reputation safeguarded.

Pfeifer, who lives in Vienna, was from 1992 to 1995 the editor of the official magazine of the Vienna Jewish community.

In February 1995 he 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 trivialising the crimes of the Nazi regime.

The professor brought defamation proceedings against Pfeifer, 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, the Public Prosecutor launched criminal proceedings under the National Socialism Prohibition Act against the professor because of his article. He committed suicide shortly before his trial.

In June 2000, the weekly publication Zur Zeit carried an article referring toPfeifer’s commentary, alleging that it had unleashed a manhunt which eventually resulted in the death of the victim.

Pfeifer unsuccessfully brought defamation proceedings against the publishing company owning Zur Zeit.

Meanwhile, in February 2001 the chief editor of Zur Zeit had addressed a letter to the subscribers which stated again that Pfeifer and a number of other people were members of a “hunting” association which had chased the professor to his death. Pfeifer 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.

Pfeifer complained to the European Court of Human Rights, relying on Article 8, that the Austrian courts failed to protect his reputation against defamatory statements made by the chief editor of Zur Zeit.

Upholding the complaint by a majority of five to two, a Chamber 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 which shocked or offended the public or a particular person were indeed protected by the right to freedom of expression under Article 10.

But the statement here at issue went beyond that, claiming that Pfeifer had caused the professor’s death by ultimately driving him to commit 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 Pfeifer of acts tantamount to criminal behaviour.

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.

Two judges expressed dissenting opinions – but both made it clear at the same time that they agreed with and welcomed the court’s statement that Article 8 encompassed an individual’s right to protection of his or her reputation.

The Court’s decision was welcomed by Jonathan Coad, a media partner with London solicitors Swan Turton, who said in an e-bulletin from his firm on November 26 that now that the right to reputation was firmly established as part of Article 8, “it will be interesting to see whether the Reynolds defence, which has the effect of depriving the victim of defamation of any prospect of vindication, will be tested in Europe”.

He went on: “If it is, the European Court of Human Rights may possibly conclude that the radical Reynolds negation of the Article 8 right of the individual to correct untrue and defamatory material published against that individual is not truly necessary in a democratic society.”



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