03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… 58. In relation to the necessity of the interference, the Government submitted that the interference was based on grounds which were “sufficient and relevant” in terms of the aims pursued, and was proportionate to those aims. They accepted that the second applicant had taken part in a debate on a matter of public interest, namely public health care in Austria. The domestic courts had issued decisions which, in the past, the Court had accepted as being within the wide margin of appreciation in purely commercial matters. The Austrian courts had followed this case-law and had considered the second applicant’s statement to be a statement of fact. On that basis, they had conducted a careful and detailed examination of the case and the parties’ arguments. The second applicant had failed to prove the existence of these facts. The fact that the F. company was a company limited by shares was no proof that it would be ruthless towards its employees or act like a “locust”. Even if the statement had to be treated as a value judgment, the second applicant had failed to show a sufficient factual basis to support his assertions. The second applicant had acted for competitive purposes, as he had stated himself at the first-instance hearing. Moreover, the courts had not prohibited the second applicant from warning against the alleged threats companies limited by shares would pose to the system of medical care, in instances where such warnings had a sufficient factual basis. 59. The Government further pointed out that the courts had not imposed a penalty, but rather an obligation not to repeat the statement that the F. company acted ruthlessly or was a “locust”. Therefore, the interference with the second applicant’s rights was of minor effect. It would not prevent him from participating in the ongoing debate about the impact of companies on medical services. B. The Court’s assessment 1. “Prescribed by law”and legitimate aim 60. The Court reiterates that, in the past, it has held that section 1 of the Unfair Competition Act which prohibits unfair commercial practice or any other unfair action which might affect the competitive capability of a business in a significant way for competitive purposes - was sufficiently precise for the purpose of Article 10 of the Convention and, accordingly, that an interference based on that provision was prescribed by law within the meaning of Article 10 (see, Krone Verlag GmbH & Co. KG v. Austria (no. 3), no. 39069/97, § 24, ECHR 2003-XII). Section 7 of the Unfair Competition Act defines “conduct” in more detail than section 1, and in substance prohibits allegations being made or facts being disseminated about a competitor’s business for competitive purposes, unless such facts are demonstrably true. The Court sees that provision as sufficiently precise for the purpose of Article 10 of the Convention. Also, the national courts’ orders to cease and desist are the legal consequences clearly outlined in section 7 of that Act. Therefore, the Court considers that the interference was prescribed by law, namely by sections 1 and 7 of the Unfair Competition Act. 61. Moreover, there is agreement between the parties 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. The Court shares this view. 2. “Necessary in a democratic society” 62. The Court notes that in the present case, the second applicant made a public statement which affected the reputation of the F. company. The right to protection of reputation is a right which is protected by Article 8 of the Convention. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness (see Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015). The Court has reiterated many times, that in cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statement, or under Article 10 by the person who made the statement. Indeed, as a matter of principle these rights deserve equal respect (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012). 63. The Court reiterates that, under its case-law, Contracting States have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165). www.bailii.org/eu/cases/ECHR/2016/179.html 11/13