FIRST SECTION. Application no. 8895/10 ÄRZTEKAMMER FÜR WIEN and Walter DORNER against Austria lodged on 3 February 2010 STATEMENT OF FACTS

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Vienna. The second applicant, Mr Walter Dorner, is an Austrian national, who was born in 1942 and lives in Vienna. Both applicants are represented before the Court by Mr G.

1 FIRST SECTION Application no. 8895/10 ÄRZTEKAMMER FÜR WIEN and Walter DORNER against Austria lodged on 3 February 2010 STATEMENT OF FACTS The first applicant, the Ärztekammer für Wien, is a Medical Association with its seat in Vienna. The second applicant, Mr Walter Dorner, is an Austrian national, who was born in 1942 and lives in Vienna. Both applicants are represented before the Court by Mr G. Korn, a lawyer practising in Vienna. A. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant is the Vienna Medical Association (Ärztekammer für Wien). The second applicant was the association s president at the relevant time. The Medical Association is the representation for medical practitioners in Vienna; it also hosts a website. 1. The statement at issue and the injunction proceedings On 18 January 2007 the second applicant published a letter on the first applicant s website addressed to all Viennese medical doctors and additionally sent out per to all members of the association. The letter was titled as follows: Locust funds want to take over medical practices. The second applicant went on stating that he was forced to write to his colleagues for a serious reason, namely because it had been reported in the media that the F. company planned to access the radiology business. It was indicated that capital companies planned to offer medical services, so at first services in the area of radiology, but sooner rather than later also other services, and that the doctors would become employees of such locust - companies. The second applicant then explained the envisaged legal and organisational basis for such a plan: radiology services today provided by medical practices could in the future also be offered by a limited company.

2 2 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA Shares of those companies could then be bought by the F. company, and the locusts would have reached their goal: the control over the medical profession. As an example for the risky development, the second applicant stated that twenty years ago colleagues had founded laboratories that had refund contracts with the relevant insurance boards. Today, those laboratories almost all were owned by the F. group that again was owned by insurance companies, investment funds and foundations, and employed a large number of medical doctors. The second applicant closed his letter stating that he could guarantee one thing: the doctors representation would make use of all legal and political means available to stop such a disastrous development to ensure, inter alia, that existing practices would be protected from the competition by international locust funds. On 24 January 2007 the F. company lodged an action and a request for an injunction with the Commercial Court in Vienna (Handelsgericht Wien). The applicants contested the request. On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants, each one individually, to allege that the F. company treated third parties, so in particular medical professionals, ruthlessly and to call the F. company a locust, a locust company and a locust funds. The applicants were further prohibited to claim that the provision of services by the F. company, so in particular services in the area of radiology, was a disastrous development. The court established a competitive relationship between the F. company and the applicants and found the statements made by the applicants to be defaming within the meaning of section 1330 of the Civil Code and unethical within the meaning of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb). The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal (Oberlandesgericht Wien) partly followed the appeal and prohibited the applicants to allege that the F. company treated third parties and medical practitioners ruthlessly and to call it inter alia a locust company. It however dismissed the F. company s request to prohibit the applicants to call its providing of services a disastrous development. The Court of Appeal found with regard to the first applicant s locus standi in the injunction proceedings that the Medical Association held, in addition to the duties of representation of its members, also official authority for certain areas of its work (Bereich der Hoheitsverwaltung). It was therefore considered a legal entity within the meaning of the Official Liability Act (Amtshaftungsgesetz). However, when acting as a special interest group, it represented its members interests of a mainly economic nature outside the area of official authority. According to the Court of Appeal the letter pursued the representation of the association s interests outside of its official field of action. The Court of Appeal further established with a reference to Wikipedia that, since a publicly widely acknowledged debate in Germany in 2005, the locust company was commonly understood as an expression being directed against private equity companies or other forms of capital funds with short-term or exaggerated return expectations like hedge funds or vulture funds. The domestic court acknowledged the need to balance the interests involved in the present debate, reiterating that extreme opinions

3 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA 3 were only unlawful if they were excessive. As a result of the balancing exercise the Court of Appeal found that the locust statement must be considered lawful criticism within the context of a public debate, and that the F. company could therefore not base its claim on section 1330 of the Civil Code. However, the Court of Appeal qualified the applicants actions to be of a competitive nature. Statements of facts made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that the Austrian law provided a wide protection for commercial and economic interests. A person that published an opinion in an economically competitive context must show a heightened diligence as regards the evidence and the facts compared to a non-competitive context of a public debate of general interest. Therefore, the Court of Appeal confirmed the injunction with regard to the statements on the locust company. However, as regards the statement on a disastrous development, the domestic court found that, read in its context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion and thus a value judgment that was not defamatory within the meaning of section 1330 of the Civil Code and did also not fall under section 7 of the Unfair Competition Act. The applicants lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof). On 22 January 2008 the Supreme Court rejected the extraordinary appeal with a reasoned decision. It acknowledged the applicants argument that, where a competitor, even following economic purposes, took part in a debate of public interest, freedom of expression must hold more weight with regard to the balancing exercise. However, the Supreme Court observed that the applicants made their statement in a clearly economic context of competing medical practices and capital companies providing the same services. It would not have been problematic for the applicants to have warned their members of possible risks of cooperating with capital companies. However, the applicants surpassed that message and stated that the F. company was a locust. The Supreme Court confirmed the character of this statement as a factual one. The applicants had not provided evidence for a factual basis for their allegations and had thus exceeded the allowed limitations of freedom of expression. 2. The main proceedings On 7 July 2008 the Commercial Court ordered the applicants to refrain from claiming that the F. company treated third parties, in particular medical practitioners and patients, ruthlessly and to allege the F. company was a locust company, a locust funds or a locust. It further ordered the applicants to publish the operational part of the judgment on the first applicant s website for thirty days and allowed for the F. company to request the publication of the operational part of the judgment in the Vienna Medical Association s print newsletter. The Commercial Court in large parts referred to the Court of Appeal s reasoning in the injunction proceedings. It followed that court s assessment that the impugned statements fell within the right to freedom of expression and did not constitute defamation pursuant to section 1330 of the Civil

4 4 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA Code. Examining the statements under the provisions of the Unfair Competition Act, the Commercial Court established that the public letter rather belonged to the Medical Association s commercial than its political sphere. It also had as an objective the advancement of independent medical practices and contained a warning of capital ventures that allegedly threatened the doctors independence. The Commercial Court found the impugned comparisons with locusts to be statements of facts in respect of the F. company and of qualities of its conduct in relation to third parties, doctors and patients. The statements were also apt to damage the F. company s commercial interests and had not been proven to be true. Criticism uttered within the framework of a commercial competitive relationship could not be covered by the right to freedom of expression. With a reference to the Court s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial communication, the Commercial Court observed that a competitor was requested to be more diligent in the context of commercial communication among competitors. The term locust was almost exclusively loaded with negative meaning that led to an unethical global vilification of a competitor. The statements were therefore to be prohibited pursuant to the Unfair Competition Act. The applicants lodged an appeal against that judgment on 19 September However, on 12 December 2008, the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given already in the provisional proceedings and added that, according to jurisprudence of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression involved the assessment of the factual basis of any such statement: if a competitor participated in a public debate of general interest, freedom of expression was granted more weight in the assessment of the statements than in a purely commercial communication. The greater the interest of the public was in being properly informed and the less commercial interests were in the foreground of the statement, the more the statement would be covered by Article 10 of the Convention. In the present case the existence of a public debate was not in doubt; however, the commercial interests of the applicants had very much been in the foreground of the communication. The applicants lodged an extraordinary appeal against that judgement that was rejected by the Supreme Court on 14 July It found that the applicants had not only called the F. company a locust but had concretised the word by associating a negative conduct with it. Therefore, the word used became a statement of fact giving the reader the impression that the F. company had already set an unethical conduct violating the interests of doctors and patients. In view of the specific circumstances of the case, the prohibition ruled on by the lower courts was justified, even though the applicants took part in a debate of general public interest, since untrue and damaging statements of facts were not justified by the concept of freedom of expression. Furthermore, the issuing of a warning concerning potential risks emanating from capital companies offering medical services was not as such prohibited by the decisions of the Austrian courts; the applicants were only required to refrain from making untrue statements of facts in respect of competitors.

5 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA 5 This decision of the Supreme Court was served on the applicants counsel on 27 August B. Relevant domestic law 1. Section 1330 of the Civil Code and section 7 of the Unfair Competition Act Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: 1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim compensation. 2. The same applies if anyone is disseminating facts, which jeopardize another person s reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof... Section 7 1 of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb) reads as follows: 1. Any party who for competitive purposes alleges or disseminates facts about the enterprise of another, about the person of the owner or manager of the enterprise or about the goods or services of another which may be detrimental to the business of the enterprise or the credit standing of its owner shall be liable [to pay] damages to the injured [party] unless such facts are demonstrably true. The injured [party] may file a claim to cease and desist from alleging or disseminating the facts. The injured [party] may furthermore demand retraction and publication of the retraction The Medical Associations and the Medical Practitioner s Act The Medical Associations are based on the Medical Practitioner s Act (Ärztegesetz) and represent the interests of the medical practitioners in Austria (Standesvertretung). They are public law bodies with compulsory membership. The associations are appointed to represent and promote the professional, social and economic interests of medical doctors and to ensure the protection of the reputation of the medical profession and the respect of the professional duties by its practitioners. There are nine regional Medical Associations in each of the Austrian regions and a Federal Association, of which the regional association are members. Their duties and responsibilities are regulated in sections 65 et seq. as regards the regional associations and in sections 117 et seq. of the Medical Practitioner s Act as regards the federal association. Section 66 of the Medical Practitioner s Act provides that the regional medical associations are called upon to inter alia conclude and terminate contracts defining the relationship between medical practitioners and social security institutions; to conclude collective agreements on the part of the employers in relation to non-medical employees; to control invoiced fees; to give legal advice; to establish regional collegial arbitration boards and conduct collegial arbitration proceedings; to establish patient arbitration boards; to establish and manage the pension and invalidity funds; to establish and manage commercial institutions; to report on public health

6 6 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA issues; to collaborate in the collection of official medical statistical data; to collaborate in the establishment of medical universities and other training institutes; to examine draft laws; to provide quality control for medical training; to provide advanced training and training facilities and to provide the quality control for the services rendered by the medical profession in general. The regional medical associations render their own statutes, the statutes of the pension and invalidity funds, the rules on contributions to the associations and to the pension and invalidity funds, the recommendations for the fee structure for private medical services and the rules on reimbursement of costs and other fees. Section 66 b 1 of the Medical Practitioner s Act provides that the associations have to follow the procedural rules provided for in the General Administrative Procedure Act whenever they act in official capacity (bei der Wahrnehmung behördlicher Aufgaben). The members of the association are all practicing medical doctors who are inscribed in the list of active medical practitioners in the geographical area of the regional medical association. The members pay regular contributions (Umlage) for the association and for the pension and invalidity funds (section 69 of the Medical Practitioner s Act). The Federal Medical Association (Österreichische Ärztekammer) inter alia manages the list of practicing medical doctors, conducts the accreditation proceedings of equivalent medical qualification and issues diploma for general practitioners, medical specialists or specialist in additional specialities, collaborates in the academic and advanced education and training of medical practitioners and conducts disciplinary proceedings. COMPLAINT The applicants complain under Article 10 of the Convention of a violation of their right to freedom of expression. They claim in particular that the interference with their right under that provision was not properly based on the law, since the domestic courts wrongly considered the applicants to make the impugned statements in a commercial and competitive context. They further complain that the interference was in any event not proportional arguing that the statements at issue were not of a commercial character and were made in the context of an important public debate of general interest.

7 ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA 7 QUESTIONS TO THE PARTIES 1. Can the first applicant, the Vienna Medical Association, in the present case be considered to be a non-governmental organisation within the meaning of Article 34 of the Convention? 2. Has there been a violation of the applicants right to freedom of expression contrary to Article 10 of the Convention?

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FIRST SECTION CASE OF KRONE VERLAG GmbH & Co. KG v. AUSTRIA (no. 3) (Application no. 39069/97)