Case summary

Oberschlick v. Austria (No 2)

European Court of Human Rights
1 July 1997

A politician, Mr. Haider, gave a speech glorifying the role of the \'generation of soldiers\' who had taken part in the Second World War. He said that all soldiers, including those in the German army, had fought for peace and freedom. This speech was reproduced in full in the magazine and commented on by the applicant, Mr. Oberschlick, who was a journalist. The applicant stated that Mr. Haider is not a Nazi, but an idiot. Mr. Haider brought an action for defamation and insult against Mr. Oberschlick and asked for an announcement of the institution of proceedings to be published in the magazine. The national court allowed the announcement to be published and later found the applicant guilty of having insulted Mr. Haider. The court also sentenced the applicant to pay fines and ordered the seizure of the relevant issue of the magazine.

The applicant claimed that the decisions in which he was held to be guilty of insult had violated his freedom of expression. 

Court’s ruling
The Court ruled that the article\'s polemical tone was protected by freedom of expression, which in turn, had been violated by the judgments of the Austrian court.

The Court noted that the interference was prescribed by law and aimed at the protection of the reputation or rights of others. As regards the necessity of the interference, the Court found that:

  • Freedom of expression is applicable also to \"information\" and \"ideas\" that offend, shock or disturb.

  • The limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual.

  • The politician concerned with his speech clearly intended to be provocative and consequently to arouse strong reactions.

  • In his article the applicant gave an objectively understandable explanation why Mr Haider’s remarks had prompted him to describe him as an idiot. Due to the explanation given the applicant\'s article could be considered polemical, but was not a personal attack.

  • The article constituted a part of a political discussion provoked by that speech and amounted to an opinion not susceptible of proof.

  • Calling a politician an idiot in public might offend him, but in the present case this word did not seem disproportionate to indignation knowingly aroused by Mr. Haider’s speech.

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