03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… applicant as a natural person it affected the second applicant individually. Therefore, the Court considers that the second applicant has standing to introduce the present application. The Government’s objection is thus dismissed. 50. Moreover, the second applicant’s complaint is not manifestly ill-founded within the meaning of Article 34 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It is therefore declared admissible. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 51. The second applicant complained of an infringement of his right to freedom of expression as a result of the measures imposed on him by domestic courts. He relied on Article 10 of the Convention, which reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 52. The Government accepted that there had been “interference by public authority” with the exercise of the applicant’s right to freedom of expression. They contended, however, that that interference satisfied the requirements of the second paragraph of Article 10. 53. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and, in addition to being proportionate, is “necessary in a democratic society” for achieving such aims. A. The parties’ submissions 54. The second applicant accepted that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. 55. However, in his view, the imposed prohibition had not been lawful, as section 7 of the Unfair Competition Act was not clear, and a prohibition based on that law was therefore not foreseeable. Accordingly, the interference was not prescribed by law. 56. As regards the necessity of the interference, the second applicant emphasised that he had contributed to a debate of public interest, and that, in respect of public shareholder companies, the limits of acceptable criticism were wider. He acknowledged that the term “locust” had a negative meaning associated with private-equity funds. However, there had been a substantive factual basis for his allegations, as the shareholders of the F. company were also companies limited by shares, and a private-equity fund was managing the holdings of one of the shareholders of the F. company. By calling the F. company a “locust” company, he had not intended to act competitively. Instead, his intention had been to voice a pointed criticism of a process he considered unlawful. The statement had aimed to point out the ongoing shift from the predominance of independent medical practitioners to a medical service determined by capital, and the consequent risks involved for doctors and their work. Moreover, the prohibition imposed by the domestic courts would prevent him from fulfilling his duties as President of the Vienna Chamber of Medical Doctors. Therefore, the interference was also not proportionate. 57. The Government submitted that the interference was “prescribed by law”, as it had its basis in sections 1 and 7 of the Unfair Competition Act. Those provisions were formulated with sufficient precision to enable the citizen to regulate his conduct, as required by the Court’s case-law. In the field of competition law in particular, an absolutely precise formulation could not be expected, as business markets and ways of communicating would always be subject to change. In addition, the interference had pursued a legitimate aim. www.bailii.org/eu/cases/ECHR/2016/179.html 10/13