03/02/2020
ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201…
likewise not provided any persuasive argument substantiating his allegations. Neither the fact that the
shares in the F. company are owned by other companies limited by shares and that one of those
shareholders is managed by a private-equity fund, nor the fact that financial resources for expansion are
raised by debenture provides a factual basis for the unethical conduct typically associated with “locust”
corporations. In addition, the fact that doctors are employees within the F. company does not provide a
factual basis for the second applicant’s allegations. The general remarks by the second applicant
concerning the future impact of the growing popularity of companies providing medical services are
not related to any actions on the part of the F. company; therefore, they cannot provide a factual basis
for his allegations against that company.
70. Accordingly, the Court arrives at the conclusion that the prohibition imposed on the second
applicant was based on “relevant and sufficient” grounds.
71. As regards the measures imposed on the second applicant, the Court notes that, according to its
case-law, the nature and severity of the interference imposed are factors to be taken into account when
assessing its proportionality (see mutatis mutandis Lindon, Otchakovsky-Laurens and July, cited above,
§ 59, and Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 54, 22 October 2009).
72. The Vienna Commercial Court did not impose a penalty, but prohibited the second applicant
from calling the F. company ruthless by the term “locust”. The second applicant was also ordered to
publish the operative part of the Vienna Commercial Court’s judgment on the first applicant
organisation’s website, and in its print newsletter. Even if the second applicant now risks the imposition
of fines for non-compliance with the injunction, the nature and severity of the court’s action was
moderate. The second applicant also failed to give reasons as to why the court’s action would prevent
him from fulfilling his duties.
73. In conclusion, the Court finds that the interference with the exercise of the second applicant’s
right to freedom of expression was necessary in a democratic society, within the meaning of Article 10
of the Convention, in order to protect the reputation and rights of the F. company. There has therefore
been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application of the first applicant organisation inadmissible and the remainder of the
application admissible;
2. Holds that there has been no violation of Article 10 of the Convention in respect of the second
applicant.
Done in English, and notified in writing on 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Fatoş Aracı
Deputy Registrar
András Sajó
President
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