18 Oct Mauthausen concentration camp survivors’ right to privacy violated

In the case of Lewit v. Austria (application no. 4782/18, 10.10.2019) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The case concerned a 96-year-old Holocaust survivor’s complaint that he had been defamed by a right-wing periodical and that the courts had not protected his right to reputation. 

In summer 2015 the periodical Aula published an article where people liberated from the Mauthausen concentration camp were described as “mass murderers”, “criminals” and “a plague”. The authorities opened criminal investigations against the author of the article but they were ultimately discontinued. In Aula’s February 2016 issue the same author reported on the discontinuation of the criminal investigations and repeated the earlier statements. Mr Lewit, together with nine other survivors, who had all been imprisoned in concentration camps and were liberated in 1945, brought an action under the Media Act (Mediengesetz) against Aula and the author.

The Court found that the Austrian courts had failed to protect the applicant’s rights because they had never dealt with the central issue of his claim: that he had been defamed by an article which had used terms like “mass murderers”, “criminals” and “a plague” to describe people like him liberated from  Mauthausen. Instead, the courts had concluded that he had no standing to bring the case at all as the number of people liberated had been so large that he could not have been personally affected by statements in which he had not been named. However, the courts had not examined the fact that by the time of the article there were far fewer survivors still alive. The courts had also concluded that the article had simply repeated statements made in an earlier piece on the same theme and thus the words had had no separate defamatory meaning. 

The Court was not persuaded by the findings that Mr Lewit and the other claimants could not have been personally affected by the second article given that the context of the two pieces had been very different, since the 2016 article was simply a description of the preliminary investigation into the 2015 article and that the statements in the second piece had had no separate defamatory meaning. Overall, the lack of a proper examination by the courts of the applicant’s defamation claim had led to a violation of his privacy rights.

References from the official website of the European Court of Human Rights