Case Law, Strasbourg: Ärztekammer für Wien and Dorner v Austria, Injunctions prohibiting attack on company’s reputation did not violate Article 10 – Hugh Tomlinson QC

23 02 2016

Austrian DoctorsIn the case of Ärztekammer für Wien and Dorner v Austria ([2016] ECHR 179) the Fourth Section of the Court of Human Rights held that an injunction prohibiting a doctors’ leader from criticising a company which provided private health care was not an unjustified interference with his Article 10 rights. Despite the public interest in the subject matter, the protection of the commercial reputation of the company justified the grant of interim and final injunctions.

Background

The applicants were the Vienna Chamber of Medical Doctors (Ärztekammer für Wien) and Walter Dorner, who was the Chamber’s president at the time of the events.

In January 2007 Mr Dorner published a letter on the Chamber’s website, which was also sent to all members of the Chamber, in which he referred to reports that a private company, F, was planning to provide radiology services. He warned of the risk that doctors might become mere employees of “locust” companies such as F. and announced that the Chamber would make use of all legal and political means available to stop such a disastrous development.

Following a complaint by company F, the Vienna Commercial Court issued an injunction, in February 2007, prohibiting the applicants from repeating the statement that the company was ruthless towards third parties, in particular medical professionals, from referring to the company as a “locust” company or fund, and from stating that the provision of radiology services by the company was a disastrous development.

The appeal court amended the injunction in that the applicants were no longer prohibited from referring to Company F’s provision of medical services as a disastrous development. The lower courts’ decisions were upheld by the Supreme Court.

In the main proceedings the Vienna Commercial Court, in July 2008, confirmed the prohibitions. Furthermore, the applicants were ordered to publish the operative part of the judgment on the Chamber’s website, where it was to be displayed for 30 days, and in the Chamber’s printed newsletter.

The judgment was eventually upheld in July 2009. The courts found that while the statements in question did not constitute defamation pursuant to the Civil Code, they had been made in a commercial context and not in the Chamber’s capacity as an official authority – the Chamber and the company F being competitors – and had been in violation of the Unfair Competition Act. The term “locust” had a negative meaning, leading to the unethical general vilification of a competitor.

The applicants complained that the domestic courts’ decisions violated their rights under Article 10 of the European Convention on Human Rights.

Judgment

In relation to the first applicant, this was established by statute.  The Court took the view that, in publishing the impugned article, it was exercising governmental powers [43].  It was, therefore, a governmental organisation within the meaning of Article 34 of the Convention and its application was, therefore, incompatible with the ratione personae with the Convention [45].

The second applicant was prohibited from repeating the statement complained of by the domestic court and the court held that he had standing to introduce the application [49].

The interference with the second applicant’s rights was prescribed by law and was for a legitimate aim [60] to [61].

In relation to the question as to whether the interference was “necessary in a democratic society” the Court began by noting that the statement made by the second applicant affected the reputation of company F, a right which was protected by Article 8 [62].

The Court referred to the well-established criteria for balancing competing rights (see, most recently, Couderc and Hachette Filipacchi Associés v. France[GC], no. 40454/07).

In relation to company F the Court noted that

“large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts, and that the limits of acceptable criticism are wider in respect of such companies. However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies – not just for the benefit of shareholders and employees, but also for the wider economic good” [65].

The noted that the statement complained of was made in the economic context of competing medical practices.  There was a debate of public interest and “freedom of expression had to hold more weight with regard to the balancing exercise” [68]  However

“the term “locust” was almost exclusively loaded with negative meaning, which led to an unethical general vilification of a competitor. The word used gave the reader the impression that the F. company had already demonstrated unethical conduct which harmed the interests of doctors and patients” [68].

The domestic courts had judged that the statement was one of fact.  It was likely to damage F company’s commercial interests and had not been proved to be true.

Even if the statement was a value judgment it had to have a solid factual basis.  The Austrian courts had found that it did not [69].

As a result, the prohibition was based on relevant and sufficient grounds [70].

The second applicant was prohibited from calling company F a “locust company” and was ordered to publish the relevant part of the domestic Court’s judgment on the first applicant’s website and its newsletter.  The nature and severity of the court’s actions was moderate [72].

As a result, the interference with the second applicant’s freedom of expression was necessary in a democratic society to protect the reputation and rights of company F and there was, therefore, no violation of Article 10.

Comment

In this case the Court found that interim and final injunctions preventing publication were justified under Article 10, despite the obvious public interest of the issue. The judgment has a number of interesting features.

First, it confirms that although a public body does not have Convention rights, its employees do.  In this case the domestic court orders were directed at both the public body and its director and the latter was entitled to challenge them relying on Article 10.

Second, the Court proceeded on the basis that Company F, a corporation, had an Article 8 right to reputation.  This remains a controversial issue which has never been fully examined by the Court.  This was discussed in my post on the admissibility decision of Firma EDV für Sie v Germany.

Third, having assumed that Company F had Article 8 rights, the Court then followed its now established practice of looking at the Axel Springer criteria for “balancing” Articles 8 and 10 (see my post on the blurring of the boundaries between privacy and defamation).  It did not, however, look at each criterion in detail but, rather, considered the distinction between statements of fact and value judgments.  The statements were either factual or unsupported value judgments and, as a result, there were “relevant and sufficient grounds” for restricting their publication.

This decision shows, once again, the limits of “public interest” in the Article 10 context.  This was not a case involving journalism or NGOs and, in this context, even where there is a “public interest” debate, sanctions on defamatory speech will usually be justifiable under Article 10.

Hugh Tomlinson QC is a member of Matrix chambers and an editor of Inforrm

 


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