12
LINGENS v. AUSTRIA JUGDMENT
36. As regards the first two points, the Court agrees with the Commission
and the Government that the conviction in question was indisputably based
on Article 111 of the Austrian Criminal Code (see paragraph 21 above); it
was moreover designed to protect "the reputation or rights of others" and
there is no reason to suppose that it had any other purpose (see Article 18 of
the Convention) (art. 18). The conviction was accordingly "prescribed by
law" and had a legitimate aim under Article 10 para. 2 (art. 10-2) of the
Convention.
37. In their respective submissions the Commission, the Government and
the applicant concentrated on the question whether the interference was
"necessary in a democratic society" for achieving the above-mentioned aim.
The applicant invoked his role as a political journalist in a pluralist
society; as such he considered that he had a duty to express his views on
Mr. Kreisky’s condemnations of Mr. Wiesenthal (see paragraph 10 above).
He also considered - as did the Commission - that a politician who was
himself accustomed to attacking his opponents had to expect fiercer
criticism than other people.
The Government submitted that freedom of expression could not prevent
national courts from exercising their discretion and taking decisions
necessary in their judgment to ensure that political debate did not
degenerate into personal insult. It was claimed that some of the expressions
used by Mr. Lingens (see paragraphs 12 and 15 above) overstepped the
limits. Furthermore, the applicant had been able to make his views known to
the public without any prior censorship; the penalty subsequently imposed
on him was therefore not disproportionate to the legitimate aim pursued.
Moreover, the Government asserted that in the instant case there was a
conflict between two rights secured in the Convention - freedom of
expression (Article 10) (art. 10) and the right to respect for private life
(Article 8) (art. 8). The fairly broad interpretation the Commission had
adopted of the first of these rights did not, it was said, make sufficient
allowance for the need to safeguard the second right.
38. On this latter point the Court notes that the words held against Mr.
Lingens related to certain public condemnations of Mr. Wiesenthal by Mr.
Kreisky (see paragraph 10 above) and to the latter’s attitude as a politician
towards National Socialism and former Nazis (see paragraph 14 above).
There is accordingly no need in this instance to read Article 10 (art. 10) in
the light of Article 8 (art. 8).
39. The adjective "necessary", within the meaning of Article 10 para. 2
(art. 10-2), implies the existence of a "pressing social need" (see the abovementioned Barthold judgment, Series A no. 90, pp. 24-25, para. 55). The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists (ibid.), but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court (see the Sunday Times judgment