03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber’s members, outside the Chamber’s official sphere of activity. 10. The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“Heuschreckenunternehmen“) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations - like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wide-ranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”. 11. However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act. 12. The applicants lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression. B. Substantive proceedings 13. On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from: repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation’s website for thirty days, and to publish it in the first applicant organisation’s print newsletter. 14. The Commercial Court made substantial reference to the Court of Appeal’s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company’s commercial interests, and had not been proved to be true. www.bailii.org/eu/cases/ECHR/2016/179.html 4/13