The lack of a proper examination of the applicant’s defamation allegation by a magazine that characterized the Nazi camp survivors as “mass murderers”, “criminals” and “plagues” violated his privacy, although he had not been named.
Lewit v. Austria 10.10.2019 (no. 4782/18)
The case concerned a now 96-year-old Holocaust survivor’s complaint that he had been defamed by a right-wing periodical and that the courts had not protect his right to reputation.
The Court found that the Austrian courts had failed to protect the applicant’s rights because they had never dealt with the central issue of his claim: that he had been defamed by an article which had used terms like “mass murderers”, “criminals” and “a plague” to describe people like him liberated from the Mauthausen concentration camp complex in 1945.
Instead, the courts had concluded that he had no standing to bring the case at all as the number of people liberated had been so large that he could not have been personally affected by statements in which he had not been named. However, the courts had not examined the fact that by the time of the article there were far fewer survivors still alive.
The courts had also concluded that the article had simply repeated statements made in an earlier piece on the same theme and thus the words had had no separate defamatory meaning. The Court found that no explanation had been provided for that finding and concluded that in fact the context and purpose of the two articles was very different.
Overall, the lack of a proper examination by the courts of the applicant’s defamation claim had led to a violation of his privacy rights.
The applicant, Aba Lewit, is an Austrian national who was born in 1923 and lives in Vienna (Austria).
He is one of the last Holocaust survivors still alive.
In summer 2015 the periodical Aula published an article where people liberated from the Mauthausen concentration camp were described as “mass murderers”, “criminals” and “a plague”.
The authorities opened criminal investigations against the author of the article but they were ultimately discontinued.
In Aula’s February 2016 issue the same author reported on the discontinuation of the criminal investigations and repeated verbatim the earlier statements. Mr Lewit, together with nine other survivors, who had all been imprisoned in concentration camps and were liberated in 1945, brought an action under the Media Act (Mediengesetz) against Aula and the author.
The claimants argued that they had been defamed and insulted by the 2016 article, even if they had not been named personally. They reiterated that they had all been victims of the National Socialist regime, and had been imprisoned in Mauthausen because of their origins, beliefs or faith and liberated after the war. They had never committed any criminally significant acts.
The Graz Regional Criminal Court dismissed their claim, finding that the number of people liberated from Mauthausen, about 20,000 in 1945, was so large as to mean the claimants could not be individually concerned by the article’s statements. It held that the claimants therefore did not have standing to bring their claim. It also found that the article had not contained any separate defamatory statements when compared with the one published in 2015.
On appeal the claimants argued that they were indeed recognisable, firstly, because only a few former Mauthausen prisoners were still alive and, secondly, because they were known as activist survivors of the Holocaust.
The Graz Court of Appeal dismissed the appeal, without going into the questions of the size of the group and the claimants’ legal standing. It confirmed the first-instance finding that the statements in question did not have a separate meaning from those published in the 2015 article.
THE DECISION OF THE COURT
The Court first found that Mr Lewit and the other former Mauthausen prisoners, as survivors of the Holocaust, constituted a social group, reiterating its case-law that the private life of each member of a group could be affected by negative stereotyping or defamatory statements.
It thus considered that although Mr Lewit had not been identified by name in the article, the case fell within the scope of his private life and that Article 8 of the Convention was applicable.
The Court took note of the Government’s argument that he should have exhausted domestic remedies before bringing his case to Strasbourg, in particular by bringing an action under Article 1330 of the Civil Code over the original 2015 article or the 2016 follow-up.
The Court reiterated that in privacy cases involving the media a remedy at national level had to offer at least the possibility of compensation for any non-pecuniary damage caused. However, based on the Austrian Supreme Court’s case-law, a claim under Article 1330 of the Civil Code did not provide such an option and so Mr Lewit, one of whose stated aims had been to obtain compensation for non-pecuniary damage, had not been obliged to use that legal option. The Court also rejected other remedies suggested by the Government as ineffective for his purposes.
On the merits The Court reiterated that under Article 8 a fair balance had to be achieved between competing interests, those of the individual and those of the community as a whole. However, the domestic courts had never got to the stage of carrying out such a balancing exercise in Mr Lewit’s case.
The first-instance court, basing its conclusion on previous domestic case-law, had found that the size of the group of liberated prisoners had been too large to allow for Mr Lewit’s identification which meant he had no legal standing to bring a claim. That had been despite the fact that the courts had never before dealt with the very particular question of the impact of a statement on a group of people whose size had diminished considerably over time, as in the present case.
The Court of Appeal had not taken up the question of legal standing at all, despite Mr Lewit making very detailed arguments. That meant that the courts had never examined the core of his claim: that he had been personally affected and defamed by the statements because only very few members of the group were still alive. Not had the courts provided relevant and sufficient arguments to support their view.
The first-instance court had also found that the 2016 article was simply a description of the preliminary investigation into the 2015 article and that the statements in the second piece had had no separate defamatory meaning. It did not provide any answer as to how it had reached that conclusion, although it was a point that should have been examined in detail.
The appeal court had in turn explicitlity noted the lack of an explanation by the first-instance body, but had gone on anyway to agree with its conclusion.
For its part, the Court was not persuaded by the findings that Mr Lewit and the other claimants could not have been personally affected by the second article given that the context of the two pieces had been very different. The first had focussed on the historical event of the Mauthausen liberation, while the second had concerned the criminal investigation into the author. The domestic courts would thus have been required to provide a comprehensive explanation of the reasons for their interpretation.
The Court concluded that the domestic courts had never actually examined the core of Mr Lewit’s claim of defamation as they had failed to carry out a comprehensive examination of the questions of legal standing and of whether the statements in question had had the same or a separate meaning in the context of the 2016 article.
The courts had therefore failed to conduct a comprehensive assessment of a matter that had affected Mr Lewit’s privacy rights, leading to a procedural violation of Article 8.
Just satisfaction (Article 41)
The Court held that Austria was to pay the applicant 648.48 euros (EUR) in respect of pecuniary damage, EUR 5,000 in respect of non-pecuniary damage, and EUR 6,832.85 in respect of costs and expenses.