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FIRST
SECTION
CASE OF ÖSTERREICHISCHER RUNDFUNK v. AUSTRIA
(Application
no. 35841/02)
JUDGMENT
STRASBOURG
7 December
2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Österreichischer Rundfunk v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 16 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35841/02) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the Österreichischer Rundfunk (“the
applicant”), on 12 September 2002.
- The
applicant was represented by Mr G. Korn, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the International Law Department at the Federal Ministry of Foreign
Affairs.
- On
25 May 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is the Austrian Broadcasting Corporation (ORF), a
public law foundation (Stiftung öffentlichen Rechts) with
its seat in Vienna.
- On
13 July 1999 the applicant broadcast information on the evening news
of its regional television channel about the release on parole of K.,
head of a neo-Nazi organisation called Extra-Parliamentary Opposition
True to the People (Volkstreue Ausserparlamentarische Opposition –
“VAPO”) who had been sentenced under the National
Socialist Prohibition Act (Verbotsgesetz, “the
Prohibition Act”). This news item also mentioned his deputy S.,
who had been convicted under the Prohibition Act in 1995 and had been
released on parole five weeks earlier. Its text ran as follows:
“For years G. K. [full name] was known as the head
of the Austrian neo-Nazi scene. But it was only after the
strengthening of the Prohibition Act in 1992 that he was charged and
sentenced to eleven years' imprisonment. Many other members of the
VAPO were put behind bars along with him, among them H.-J. S.[full
name] – who has also recently been released. K.[family name],
now aged 41, made the headlines even while in prison in Krems, for
instance at the first letter bomb trial. His release today, however,
took place without much ado. Waiting journalists saw nothing but his
belongings packed in boxes.”
- While
the third sentence of this text was broadcast, a picture showing S.
at his trial in 1995 was broadcast for a couple of seconds.
- The
news item was followed by a brief statement of the commentator. He
stated that K. had served seven and a half years of his sentence. The
Public Prosecutor had opposed his release on parole, but the Vienna
Court of Appeal had granted K.'s request, having refused his first
request for early release in 1997.
- On
23 September 1999 S. brought proceedings under Section 78 of the
Copyright Act (Urheberrechtsgesetz), requesting that the
applicant be prohibited from publishing his picture without his
consent accompanied by any text stating that he had been convicted
under the Prohibition Act once the sentence had been executed or once
he had been released on parole. In addition he requested a
preliminary injunction to that effect.
- In
its submissions in reply (Klagebeantwortung)
the applicant asserted that it had reported on true facts. As regards
the publication of the applicant's picture the applicant referred to
the Supreme Court's established case-law that Section 78 of the
Copyright Act had to be interpreted in the light of Section 7a of the
Media Act (see below). Given that S. was an adult who had been
convicted of a crime, it followed from Section 7a (2) of the Media
Act that the publication of his picture only violated his legitimate
interests if it substantially prejudiced his economic advancement.
Even if the claimant's legitimate interests were affected, they had
to be weighed against the public interest in the publication. In the
present case, the public interest was predominant, given that VAPO
was an organisation which aimed at destroying the Austrian
constitutional order and that two of its leading members, namely K.
and the claimant, had been released from prison within a short
period. Other media including two leading daily newspapers had also
mentioned S.'s release in the context of reports on K.'s release.
Finally, the applicant emphasised that under the relevant
broadcasting laws it even had an obligation to impart information on
political issues.
- On
11 November 1999 the Vienna Commercial Court (Handelsgericht)
granted the preliminary injunction.
- The
Commercial Court noted that the following facts were undisputed: The
claimant, who had been convicted under the Prohibition Act in 1995
and had been sentenced to eight years' imprisonment, had been one of
the leading members of VAPO which aimed at fighting against
democratic order in Austria. He had participated in training camps
organised by VAPO which were destined to train to kill. He had been
released on 7 June and K. five weeks later on 13 July 1999. On the
latter date the applicant had broadcast the report at issue.
- As
to the interpretation of Section 78 of the Copyright Act in
conjunction with Section 7a of the Media Act, the Commercial Court
agreed that the legitimate interests of an adult who had been
convicted of a crime were only violated if the publication of his
name or picture disproportionately prejudiced his economic
advancement.
- Applying
this case-law to the facts of the present case, the Commercial Court
noted that the report in the present case dealt mainly with K.'s
release on parole. In its view there was an evident interest of S.
not to have broadcast his picture taken in the course of criminal
proceedings dating years back, even if the fact that he had meanwhile
been released on parole was mentioned. S.'s picture had been widely
broadcast at the time of the criminal proceedings against him.
However, its broadcasting at the present stage did not add any
relevant information to the report at issue, even if the criminal
proceedings against him had been among the most important ones
conducted under the Prohibition Act.
- On
21 June 2000 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal.
The
Court of Appeal confirmed the Commercial Court's assessment that the
publication of S.'s picture had violated his legitimate interests
within the meaning of Section 78 of the Copyright Act read in
conjunction with Section 7a of the Media Act. Like the Commercial
Court it stressed in particular that S.'s picture had been broadcast
in the context of a report on the release of another person, K., and
found that S. had an evident interest not to have his picture
published in that context even if his own release dating some weeks
back had also been mentioned. Even taking into account that S. had a
certain degree of notoriety, his advancement within the meaning of
Section 7a of the Media Act had been hampered disproportionately by
the new publication of a picture taken at his trial.
- The
Supreme Court (Oberster Gerichtshof) rejected the applicant's
extraordinary appeal on points of law on 13 September 2000.
In
the subsequent main proceedings, the Vienna Commercial Court gave
judgment on 31 December 2000. It ordered the applicant to refrain
from publishing S.'s picture without his consent if it was
accompanied by any text stating that he had been convicted under the
Prohibition Act once the sentence had been executed or he had been
released on parole. In its reasoning it repeated the arguments which
had been developed in the preliminary injunction proceedings.
- On
29 November 2001 the Vienna Court of Appeal dismissed the applicant's
appeal. It repeated the arguments set out in its judgment of 21 June
2000. Moreover, it referred to the Supreme Court's judgment of
13 September 2000.
- On
12 February 2002 the Supreme Court rejected the applicant's
extraordinary appeal on points of law.
- The
decision was served on the applicant's counsel on 8 April 2002.
II. RELEVANT DOMESTIC LAW
A. Regulations concerning the ORF and broadcasting
- The
general framework for broadcasting is set out in the Constitutional
Act concerning the Safeguarding of the Independence of Broadcasting
of 10 July 1974 (“the Constitutional Broadcasting Act”,
BVG über die Sicherung der Unabhängigkeit des Rundfunks,
Federal Law Gazette no. 396/1974). Article 1 of the
Constitutional Broadcasting Act, as far as material, reads as
follows:
“2. Broadcasting shall be governed by
more detailed rules to be set out in a federal law. Such a law must
inter alia contain provisions guaranteeing the objectivity and
impartiality of reporting, the diversity of opinions, balanced
programming and the independence of persons and bodies responsible
for carrying out the duties defined in paragraph 1.”
- With
effect of 31 December 2001 the ORF, which had been a public
law corporation before, was transformed into a public law foundation,
a legal entity without an owner by the Act on the Austrian
Broadcasting (“the 2001 Act”, Bundesgesetz über
den Österreichischen Rundfunk, Federal Law Gazette
no. 83/2001). Those provisions of the law relating to the
setting up of the ORF's organs entered into force on 1 August
2001, the law in its entirety came into force on 1 January 2002.
- The
foundation has to fulfil a public law mandate which comprises
operating at least two national television programmes plus three
national and nine regional radio programmes (Section 3 § 1).
- In
accordance with Section 4 § 1 the ORF has to provide
comprehensive news coverage of major political, social, economic,
cultural and sporting events. In its broadcasts it has to observe the
requirements of objectivity and diversity of views and has to
preserve its independence from the State, parties, other media or
lobbying groups (Section 4 §§ 5 and 6).
- Pursuant
to Section 19 § 1 the ORF's bodies are the Foundation
Council (Stifungsrat), the Director General (Generaldirektor),
the Audience Council (Publikumsrat) and the Auditing
Commission (Prüfungskommission). In the exercise of their
functions, all members of these bodies are only subject to the law
and are not bound by any instructions (Section 19 § 2).
24. Section
20 regulates the appointment of the Foundation Council. It
consists of 35 members who are appointed as follows: six by the
Federal Government upon proposals of the political parties
represented in the National Assembly (Nationalrat), nine by
the Länder, nine by the Federal Government, six by the
Audience Council and five by the Central Works Council
(Zentralbetriebsrat). Pursuant to Section 21 § 1, the
Foundation Council is in charge of monitoring the management and of
appointing the Director General.
- The
Director General is appointed for five years. The Foundation Council
can only remove him from office with a two thirds majority (Section
22 §§ 1 and 5). The Director General runs the ORF's
activitites. He is not bound by any instructions (Section 22 §
3).
- The
Audience Council is composed of 35 members representing different
sectors of society. Its task is to represent the interests of the
audience (Section 28).
- The
programme fees are fixed by the Foundation Council and are subject to
approval by the Audience Council (Section 31 §§ 1 and 2).
- Pursuant
to Section 32 § 1 the ORF has to guarantee the
independence of all editorial and journalistic members of its staff.
To safeguard the latter's independence the ORF has to conclude an
Editor's Statute (Redakteursstatut) with the staff
representatives elected by secret ballot.
- Section
35 provides that the Federal Communication Panel
(Bundeskommunikationssenat) decides on alleged violations of
the 2001 Act, unless the issue falls within the competence of the
courts or administrative authorities.
- The
ORF does not have a broadcasting monopoly. Private
broadcasters may obtain licences under the Private Radio Act
(Regionalradiogesetz) and the Private Television Act
(Privatfernsehgesetz).
- The
Federal Communication Panel, established by the Act on the
Communication Authority Austria (Federal Law Gazette no. 32/2001)
consists of five members, who are appointed for a term of six years.
Three members have to be judges one of whom is elected by the Panel
as its Chairperson. All members of the Panel are independent in the
exercise of their functions and are not bound by any instructions.
The Federal Communication Panel is competent to monitor the ORF's
compliance with the 2001 Act (see paragraph 29 above) and to
supervise the KommAustria, the authority competent for all matters of
broadcasting regulation, including the granting of licences to
private broadcasters and the supervision of private broadcasters'
compliance with the provisions of the Private Radio Act and the
Private Television Act. The decisions of the Federal Communication
Panel are subject to an appeal to the Administrative Court.
B. The Copyright Act
- Section
78 of the Copyright Act reads as follows:
“(1) Images of persons shall neither be
exhibited publicly, nor disseminated in any other way in which they
are made accessible to the public, where the legitimate interests of
the person in question or, in the event that they have died without
having authorised or ordered publication, of a close relative would
be injured...”
- Starting
with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302)
the Supreme Court has consistently held that Section 78 of the
Copyright Act has to be interpreted in the light of Section 7a of the
Media Act.
C. The Media Act
- Section
7a of the Media Act reads as follows:
“(1) Where publication is made, through
any medium, of a name, image or other particulars which are likely to
lead to the disclosure to a larger not directly informed circle of
people of the identity of a person who
1. has been the victim of an offence
punishable by the courts, or
2. is suspected of having committed, or has
been convicted of, a punishable offence,
and where the legitimate interests of that person are
thereby harmed and there is no predominant public interest in the
publication of such details on account of the person's position in
society, of some other connection with public life, or of other
reasons, the victim shall have a claim against the owner of the
medium (publisher) for damages for the injury suffered. The award of
damages shall not exceed 14,535 euros; additionally, Section 6(1),
second sentence, shall apply.
(2) The legitimate interests of the victim
shall in any event be harmed if the publication
1. in the case of subsection (1)1, is such as
to give rise to an interference with the victim's strictly private
life or to his or her exposure,
2. in the case of subsection (1)2, relates to
a juvenile or merely to a lesser indictable offence or may
disproportionately prejudice the victim's advancement.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the courts' decisions violated its right to
freedom of expression as provided in Article 10 of the Convention,
which reads as follows:
“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.”
A. Admissibility
1. The parties' submissions
- The Government contested the applicant's locus
standi within the meaning of Article 34 of the Convention.
- Referring to the Convention case-law concerning
territorial authorities and to the case of The Holy
Monasteries v. Greece (judgment of 9 December 1994, Series A no.
301 A), they argued that the applicant did not qualify as a
“non-governmental organisation”.
- The
Government asserted that the applicant was, since 2001, a public law
foundation without an owner. Nevertheless, it was under State
control: the majority of the members of the Foundation Council,
namely 18 out of 35, were appointed by the Federal Government
and the Länder. Consequently, the public authorities were in a
position to exercise a direct or indirect dominant influence on the
applicant company, which therefore qualified as a public undertaking
under EU-law (Commission Directive 2000/52/EC of 26 July 2000
amending Directive 80/723/EEC on the transparency of financial
relations between Member States and public undertakings directive).
- Furthermore
the applicant had a public service mandate defined by law obliging it
to provide regularly and permanently one region-wide and two
nation-wide radio programmes and two nation-wide television
programmes.
- It
financed its activities from programme fees fixed unilaterally by its
organs, namely the Foundation Council and the Audience Council. A
company of which the applicant was the sole owner was empowered by
law, namely the Collection of Broadcasting Fees Act
(Rundfunkgebührengesetz), to collect these fees. Private
broadcasters did not have such a system of financing at their
disposal.
- Finally,
the applicant's activities were subject to State supervision in two
respects. Firstly, the Federal Communication Panel supervised the
applicant company's compliance with its obligations under the 2001
Broadcasting Act. Secondly, the Audit Office (Rechnungshof)
controlled its financial management.
- The
applicant contested the Government's view. Although it was a legal
person established by public law and provided a public service, it
did not exercise any sovereign powers comparable to that of an
administrative authority. Relying on a decision of the Constitutional
Court (of 27 June 1975, G 24, 27/74) the applicant company argued
that its bodies were neither state organs nor did they exercise
governmental powers.
- Moreover,
the applicant asserted that it was not acting under Government
control. It argued that the 2001 Act, apart from transforming it from
a public law corporation into a public law foundation, did not affect
other aspects of its legal status, in particular its institutional
independence. Its organs were established as independent bodies which
did not receive any instructions in the exercise of their functions.
- The
applicant's public service mandate consisted of the duties defined in
the Constitutional Broadcasting Act, and was designed to secure the
enjoyment of the right to freedom of information by all citizens.
Moreover, the Constitutional Broadcasting Act was also applicable to
private broadcasting companies with which the applicant company
competed on the media market, just like public broadcasting companies
in other European countries did.
- Finally,
if one followed the Government's argument, public law broadcasting
companies would not be able to rely on the provisions of the
Convention, whereas their private competitors could, which would not
be in conformity with the concept of the Convention.
2. The Court's assessment
- The
Court observes that a legal entity “claiming to be the victim
of a violation by one of the High Contracting Parties of the rights
set fourth in the Convention and the Protocols thereto” may
submit an application to it provided that it is a “non-governmental
organisation” within the meaning of Article 34 of the
Convention. The Government's line of argument was that the ORF was
a governmental rather than a non-governmental organisation.
- In
its Radio France and Others v. France decision (no. 53984/00,
ECHR 2003 X (extracts)), the Court summarised the Convention
case-law relating to the question whether territorial authorities and
other public law entities qualified as “governmental
organisations”:
“It follows from the above-mentioned decisions and
judgment that the category of 'governmental organisation' includes
legal entities which participate in the exercise of governmental
powers or run a public service under government control. In order to
determine whether any given legal person other than a territorial
authority falls within that category, account must be taken of its
legal status and, where appropriate, the rights that status gives it,
the nature of the activity it carries out and the context in which it
is carried out, and the degree of its independence from the political
authorities.”
48. The
Court notes at the outset that the parties' submissions refer to the
legal situation as described in the 2001 Act on the Austrian
Broadcasting, which had entered into force on 1 January 2002 before
the final decision in the present case was given and the application
lodged. It follows that the question of the ORF's locus
standi is to be assessed in the light of the provisions contained
in the 2001 Act.
- Applying
the criteria set out in the Radio France decision (cited
above) to the present case, the Court observes that the applicant
undisputedly does not exercise governmental powers. It provides a
public service and it therefore remains to be examined whether it
does so under government control.
- The
Court observes that the basic rules for broadcasting in Austria are
laid down by the 1974 Constitutional Law concerning the Safeguarding
of the Independence of Broadcasting, which stipulates that any law
governing broadcasting has to contain provisions to ensure the
objectivity and independence of reporting. The applicant which, since
1974, was a public law corporation was transformed into a public law
foundation without an owner by the 2001 Act. Its capital, though
stemming from public means, is therefore no longer held by the State.
The applicant finances its activities from programme fees which it
can fix itself. Its mandate is set out in the 2001 Act as are the
rules relating to the establishment of its organs, namely the
Foundation Council, the Director General, the Audience Council and
the Auditing Commission.
- The
Foundation Council monitors the applicant's management and appoints
the Director General for a period of five years. The latter is
responsible for running of the applicant's activities and can only be
removed by the Foundation Council acting with a two-thirds majority.
The Government argued in particular that the public authorities
exercise control since the Federal Government and the Länder
appoint a majority of the members of the Foundation Council, namely
18 out of 35. However, the Court notes a number of features which are
designed to guarantee the ORF's independence. Firstly, its
mandate laid down in Section 4 § 1 of the 2001 Act oblige it to
observe the requirements of objectivity and diversity of reporting
and to preserve its independence inter alia from the State and
the parties. Secondly, Section 19 § 2 provides that the members
of the Foundation Council are only bound by law in the exercise of
their functions and do not receive any instructions. Section 22 §
3 contains the same provision for the Director General. Thirdly, a
number of provisions of the said Act guarantee the editorial and
journalistic independence of the applicant's staff members. Finally,
the Federal Communication Panel which monitors the ORF's
compliance with the 2001 Act is an independent body consisting of a
majority of judges. Having regard to all these elements, the Court is
not convinced that the applicant is placed under “government
control.”
- Moreover,
the Austrian Broadcasting does not hold a broadcasting monopoly, but
operates in a sector open to competition. Private broadcasters can
obtain licences under the Private Radio Act and the Private
Television Act. As to the Government's argument that the applicant
could rely on a method of financing which was not at the disposal of
private broadcasters and was subject to the financial control of the
Audit Office, the Court recalls that, even where a public broadcaster
is largely dependent on public resources for the financing of its
activities this it not considered to be a decisive criterion, while
the fact that a public broadcaster is placed in a competitive
environment is an important factor (see Radio France and Others,
cited above).
- In
conclusion, the Court finds that the Austrian legislator has devised
a framework which ensures the Austrian Broadcasting's editorial
independence and its institutional autonomy. Consequently, the
Austrian Broadcasting qualifies as a “non-governmental
organisation” within the meaning of Article 34 of the
Convention and is therefore entitled to lodge an application.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant, while conceding that the interference at issue had a legal
basis and served a legitimate aim, contested its necessity. It argued
in particular that the prohibition to publish Mr S.'s picture in the
context of any reports about his conviction under the Prohibition Act
limited its choice of the form and means of imparting information,
while other media remained free to publish Mr S.'s picture in the
said context.
- In
the applicant's assertion the Austrian courts had failed to duly
weigh the competing interests, since they prohibited the publication
of Mr S.'s picture although the accompanying text reported true
facts, namely S.'s conviction under the Prohibition Act and his
release from prison. Moreover, the news item at issue reported on a
subject of great public interest which the applicant, given its
broadcasting mandate, was obliged to cover, namely the release on
parole of Mr K., a well-known neo-Nazi and leader of VAPO, an
organisation which aimed at destroying the democratic order in
Austria. There was an equally important public interest in reporting
that only a few weeks earlier Mr K.'s deputy, Mr S., had also been
released on parole.
- The
Government's observations also concentrated on the necessity of the
interference. They conceded that the news item broadcast by the
applicant concerned an issue of public interest, namely the release
on parole of Mr K., a leading neo-Nazi. Mr S. was only mentioned as
an example of another convict in proceedings against VAPO members.
Furthermore, his own release on parole a few weeks earlier was
mentioned. The publication of a picture showing him at his trial
years back did not add any information of public interest to the
report.
58.
Even if Mr S. enjoyed certain notoriety, the courts had rightly found
that his interest not to have his picture broadcast many years after
his trial prevailed over the applicant's interest to use that picture
for purely illustrative purposes. This was all the more so, since Mr
S. had been released a few weeks earlier and was thus just beginning
to re-integrate into society. He therefore had an important interest
not to have his picture shown again in the context of criminal acts
the penalty of which he had already served. In any case, the
applicant remained free to report about the events at issue without
showing Mr S.'s picture. In sum, the interference with the
applicant's right to freedom of expression was proportionate.
2. The Court's assessment
- The
present case concerns proceedings under the Copyright Act brought by
Mr S. against the applicant in respect of a news item in which his
picture was shown. The courts prohibited the applicant from showing
Mr S.'s picture in connection with any report stating that he had
been convicted under the Prohibition Act one the sentence had been
executed or once he had been released on parole. It is undisputed
that the courts' judgments in these proceedings constituted an
interference with the applicant's right to freedom of expression.
- It
is not in dispute either that the interference was “prescribed
by law” and served a legitimate aim, namely the protection of
rights and reputation of others.
- The
parties' argument concentrated on the necessity of the interference.
As regards the general principles relating to freedom of expression
of the media in the context of reporting on issues of public interest
and the question of assessing the necessity of an interference with
that freedom, the Court refers to its established case-law in the
cases of Feldek v. Slovakia (no. 29032/95, §§ 72-76,
ECHR 2001 VIII) and Scharsach and News Verlagsgesellschaft v.
Austria (no. 39394/98, § 30, ECHR 2003 XI).
- In
accordance with its case-law, the Court will examine whether the
reasons adduced by the domestic courts were “relevant and
sufficient” and whether the interference was proportionate to
the legitimate aim pursued. In so doing the Court will have regard to
the domestic courts' margin of appreciation.
- As
it did in comparable cases, the Court will take the following
elements into account: the position of the applicant, the position of
Mr S. who brought the proceedings and the nature and subject matter
of the report at issue (see, for instance, Scharsach and News
Verlagsgesellschaft, cited above, § 31, and Jerusalem v.
Austria, no. 26958/95, § 35, ECHR 2001 II).
- The
applicant is the Austrian public broadcaster. The Court notes that
Section 4 § 1 of the 2001 Act obliges it to cover any major new
item in the field of politics. In this connection the Court's
reiterates its view that the press and more generally the media have
a duty to impart – in a manner consistent with their
obligations and responsibilities – information and ideas on all
matters of public interest (see, among many other authorities,
De Haes and Gijsels v. Belgium, judgment of 24 February
1997, Reports of Judgments and Decisions 1997 I, pp.
233-34, § 37).
- Mr
S. who brought the proceedings at issue, is a well-known member of
the neo-Nazi scene in Austria. The Court has already held in a
similar case that a person expressing extremist views lays himself
open to public scrutiny (see, News Verlags GmbH & Co.KG v.
Austria, no. 31457/96, § 56, ECHR 2000 I).
Moreover, Mr. S. was convicted of crimes under the Prohibition Act in
1995 and was sentenced to a lengthy prison term for being a leading
member of VAPO, an organisation aimed at destroying the Austrian
constitutional order. In the domestic courts' assessment the
proceedings against Mr S. were among the most important ones under
the Prohibition Act. At the time of his trial his picture was widely
published.
- Turning
to the nature and subject matter of the news item broadcast by the
applicant, the Court notes that it was a brief report dealing mainly
with the release on parole of Mr. K. the leader of VAPO and the
neo-Nazi scene in Austria. Mr S. was mentioned as another convicted
member of VAPO who had also been released on parole a few weeks
earlier. It is not contested by the Government that the news item
concerned an issue of public interest. Consequently, it related to a
sphere in which restrictions on freedom of expression are to be
strictly construed. Accordingly, the Court must exercise caution when
the measures taken by the national authorities are such as to
dissuade the media from taking part in the discussion of matters of
public interest (see for instance Thoma v. Luxembourg,
no. 38432/97, § 58, ECHR 2001 III, and Jersild v.
Denmark, judgment of 23 September 1994, Series A no. 298, pp.
25-26, § 35).
- The
Court notes that the injunction granted by the domestic courts was
phrased in broad terms. It prohibited the applicant from showing Mr
S.'s picture in connection with any text mentioning his conviction
under the Prohibition Act once the sentence has been executed or once
he had been released on parole.
- While
the court agrees that there may be good reasons to prohibit the
publication of a picture of a convicted person after his release on
parole a number of elements are to be taken into account when
weighing the individual's interest not to have his physical
appearance disclosed against the public's interest in the publication
of his picture. Elements that will be relevant are the degree of
notoriety of the person concerned, the lapse of time since the
conviction and the release, the nature of the crime, the connection
between the contents of the report and the picture shown and the
completeness and correctness of the accompanying text.
- The
domestic courts attached great weight to the time-element, in
particular to the long lapse of time since Mr S.'s conviction, but
did not pay any particular attention to the fact that only a few
weeks had elapsed since his release. They did not take into account
his notoriety and the political nature of the crime of which he had
been convicted. Nor did they have regard to other important elements,
namely that the facts mentioned in the news items were correct and
complete and that the picture shown was related to the content of the
report.
- The
latter elements distinguish the present case from a comparable case
(Österreichischer Rundfunk v. Austria (dec.), no.
57597/00, 25 May 2004) which was declared inadmissible. In that case,
the Court found no indication of a violation of Article 10 as regards
the prohibition to publish a convict's picture after his release on
parole. It had regard to the fact that the picture of B. who had been
convicted under the Prohibition Act had been shown in a different
context, namely in connection with the investigations in respect of a
spectacular series of letter bomb attacks without mentioning that B.
had been acquitted of any involvement in these attacks and without
mentioning that he had served his sentence under the Prohibition Act
and had been released on parole.
- Another
element which is of relevance is that the other media remained free
to publish Mr S.'s picture in the said context. This has not been
contested by the Government.
- In
sum the Court finds that the reasons adduced by the domestic courts
were not “relevant and sufficient” to justify the
interference. It follows that the interference was not “necessary
in a democratic society” within the meaning of Article 10 §
2 of the Convention.
- There
has accordingly been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 10
- The
applicant complained of a violation of Article 14 taken in
conjunction with Article 10, in that the contested injunction
prohibited it from publishing Mr S.'s picture while other media
remained free to do so.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 10 (see paragraph 71
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 14 taken
in conjunction with Article 10 (see, among other authorities, News
Verlags GmbH & Co.KG, cited above, §§ 61-62).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,711.63 euros (EUR) as compensation for pecuniary
damage, namely the costs the courts had ordered it to reimburse to
Mr. S. This sum includes value-added tax (VAT) which the applicant
asserts it cannot recover.
-
The Government commented in general terms that there must be a causal
link between the damage claimed and the violation found.
- The
Court finds that there is a causal link between the violation found
and the pecuniary damage claimed; it awards the sum in full, that is
EUR 6,711.63.
B. Costs and expenses
- The
applicant also claimed EUR 13,190.67 for the costs and expenses
incurred before the domestic courts. It accepted that the amount of
VAT included in this sum, namely EUR 1,892.74, have to be deducted.
Moreover, the applicant claimed EUR 7,019.28 for costs and expenses
incurred before the Court.
- The
Government accepted the amounts claimed, but submitted that 20% VAT,
i.e. EUR 1,169.88, had to be deducted from the costs incurred before
the Court.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court awards EUR 11,297.93 in
respect of costs and expenses incurred before the domestic court and
EUR 5,849.40 for the proceedings before the Court. The total
amount, which does not include VAT, is EUR 17,147.33.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine the
complaint under Article 14 of the Convention taken in conjunction
with Article 10;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,711.63 (six
thousand seven hundred eleven euros and sixty-three cents) in respect
of pecuniary damage and EUR 17,147.33 (seventeen thousand one hundred
forty-seven euros and thirty-three cents) in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
