03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… 64. The Court has identified a number of criteria in the context of balancing the competing rights. The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the person who made the statement (see, mutatis mutandis Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015). 65. The Court has also found that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts, and that the limits of acceptable criticism are wider in respect of such companies. However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies - not just for the benefit of shareholders and employees, but also for the wider economic good. Therefore, the State enjoys a margin of appreciation as to the means it provides under domestic law by which a company can challenge the truth and limit the damage of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005- II). Furthermore, the Court emphasises that a wider margin of appreciation entrusted to the States is essential in the complex and fluctuating area of unfair competition (see Krone Verlag GmbH & Co. KG (no. 3), cited above § 30, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291-A). 66. However, it is necessary to reduce the extent of the margin of appreciation when what is at stake is not an individual’s purely “commercial” statement, but his participation in a debate of general interest, for example, a debate about public health (see Hertel v. Switzerland, 25 August 1998, § 47, Reports 1998-VI). 67. The Court notes that, in order to assess the justification of a statement which is in issue, a distinction must be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it. The classification of a statement as one of fact or as a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities - in particular, the courts (see, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007-IV). However, the Court can change this classification under its supervisory role (see Kharlamov v. Russia, no. 27447/07, § 31, 8 October 2015; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 22 January 2015). 68. Turning to the circumstances of the present case, the Court notes that the domestic courts took the statement of 18 January 2007 into consideration in its entirety, and found that the statement was made in the clearly economic context of competing medical practices and capital companies providing the same services. They acknowledged that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight with regard to the balancing exercise. However, the term “locust” was almost exclusively loaded with negative meaning, which led to an unethical general vilification of a competitor. The word used gave the reader the impression that the F. company had already demonstrated unethical conduct which harmed the interests of doctors and patients. Therefore, the domestic courts judged the relevant statement to be one of fact. The statement was also likely to damage the F. company’s commercial interests, and had not been proved to be true. 69. The Court considers that there is no need to further clarify whether the present statement was one of fact or a value judgment, since a sufficient factual basis for it was needed in any case. For a company which offers medical services, the accusation that it acted as a “locust” (which, as can be seen from the context of the applicants’ letter, also implied that the F. company or similar companies placed economic interests above those of its patients) was a particularly serious one which affected its reputation. Thus, even if the applicant had intended to make that statement in the context of a wider debate on an issue of public concern, he had to have a solid factual basis on which to base that allegation. In the domestic proceedings, the Austrian courts - after carefully examining the arguments put forward by the applicant - concluded that there was no such factual basis, and the applicant has www.bailii.org/eu/cases/ECHR/2016/179.html 12/13