LINGENS v. AUSTRIA JUGDMENT
15
contributing to public discussion of issues affecting the life of the
community. By the same token, a sanction such as this is liable to hamper
the press in performing its task as purveyor of information and public
watchdog (see, mutatis mutandis, the above-mentioned Barthold judgment,
Series A no. 90, p. 26, para. 58).
45. The Austrian courts applied themselves first to determining whether
the passages held against Mr. Lingens were objectively defamatory; they
ruled that some of the expressions used were indeed defamatory - "the
basest opportunism", "immoral" and "undignified" (see paragraph 21
above).
The defendant had submitted that the observations in question were
value-judgments made by him in the exercise of his freedom of expression
(see paragraphs 22 and 29 above). The Court, like the Commission, shares
this view. The applicant’s criticisms were in fact directed against the
attitude adopted by Mr. Kreisky, who was Federal Chancellor at the time.
What was at issue was not his right to disseminate information but his
freedom of opinion and his right to impart ideas; the restrictions authorised
in paragraph 2 of Article 10 (art. 10-2) nevertheless remained applicable.
46. The relevant courts then sought to determine whether the defendant
had established the truth of his statements; this was in pursuance of Article
111 para. 3 of the Criminal Code (see paragraph 20 above). They held in
substance that there were different ways of assessing Mr. Kreisky’s
behaviour and that it could not logically be proved that one interpretation
was right to the exclusion of all others; they consequently found the
applicant guilty of defamation (see paragraphs 24, 26 and 29 above).
In the Court’s view, a careful distinction needs to be made between facts
and value-judgments. The existence of facts can be demonstrated, whereas
the truth of value-judgments is not susceptible of proof. The Court notes in
this connection that the facts on which Mr. Lingens founded his valuejudgment were undisputed, as was also his good faith (see paragraph 21
above).
Under paragraph 3 of Article 111 of the Criminal Code, read in
conjunction with paragraph 2, journalists in a case such as this cannot
escape conviction for the matters specified in paragraph 1 unless they can
prove the truth of their statements (see paragraph 20 above).
As regards value-judgments this requirement is impossible of fulfilment
and it infringes freedom of opinion itself, which is a fundamental part of the
right secured by Article 10 (art. 10) of the Convention.
The Vienna Regional Court held that the burden of proof was a
consequence of the law and that it was not for the courts but for the
legislature to make it less onerous (judgment of 1 April 1981; see paragraph
26 above). In this context the Court points out that it does not have to
specify which national authority is responsible for any breach of the
Convention; the sole issue is the State’s international responsibility (see,