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FIRST
SECTION
CASE OF NIKOWITZ AND VERLAGSGRUPPE NEWS GMBH
v.
AUSTRIA
(Application
no. 5266/03)
JUDGMENT
STRASBOURG
22
February 2007
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 Nikowitz and Verlagsgruppe News GmbH 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 N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 1 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5266/03) 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 Mr Rainer Nikowitz, an Austrian national, and
Verlagsgruppe News GmbH, a limited liability company with its
registered office in Tulln, on 3 February 2003.
- The
applicants were represented by Mr H. Simon, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Mr F. Trauttmansdorff, Head of the
International Law Department at the Federal Ministry for Foreign
Affairs.
- On
15 September 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant company is the owner and publisher of the weekly magazine
Profil. The first applicant works as a journalist for the
applicant company.
- In
the section of the issue of Profil of 3 September 2001 dealing
with society matters the applicant company published, on page 124, a
two-page article by the first applicant with the headline “Ouch”
and the strapline “Hermann Maier. Austria is limping. Rainer
Nikowitz too is suffering from acute phantom pains as a result of the
national broken leg.” The article was accompanied by a
portrait of Mr Maier together with the caption “Hero
Hermann's leg is causing millions of Austrians pain”.
- The
article was meant as an ironic essay on the reaction of the Austrian
population and media scene to the road-traffic accident in which the
Austrian ski-racing champion Hermann Maier had injured his leg some
weeks before. In this context the article cited and commented on
various statements from Austrian and German newspapers and Hermann
Maier's Internet homepage. The article also mentioned one of Maier's
competitors, the Austrian ski-racing champion Stefan Eberharter. The
relevant passage reads as follows:
“Even Maier's dear friend Stefan Eberharter had to
say something, and he presumably decided against it at the last
moment: 'Great, now I'll win something at last. Hopefully the rotten
dog will slip over on his crutches and break his other leg too'.”
“Auch Maiers lieber Freund
Stefan Eberharter musste was sagen, und er entschied sich vermutlich
im letzten Moment gegen: 'Super, jetzt gwinn ich endlich auch einmal
was. Hoffentlich prackt's den miesen Hund mit den Krücken hin,
und er bricht sich den anderen Haxn auch noch'.”
- Subsequently,
Mr Eberharter brought a private prosecution for defamation against
the first applicant and a compensation claim under the Media Act
(Mediengesetz) against the applicant company. He submitted
that the above passage communicated a negative image of him as it
suggested disdainful behaviour towards a colleague. Like all top
athletes he earned the majority of his income from public-relations
activities for sponsor companies. Because of the article in question
he had already been repeatedly questioned about his attitude
concerning Mr Maier's accident. If the suggested reproach of most
objectionable competitiveness remained attached to him, this would
entail a significant loss of value in his standing as a communication
medium. His previous correspondence with the applicant company
requesting it to publish his comment had remained unsuccessful.
- On
6 December 2001 the Vienna Regional Criminal Court (Landesgericht),
having held a hearing, convicted the first applicant of defamation
under section 111 of the Criminal Code (Strafgesetzbuch) and
sentenced him to a fine of 40 daily payments (Tagessätze) of
500 Austrian schillings (ATS) each (making a total of ATS 20,000
[approximately 1,450 euros (EUR)]) suspended for a three-year
probationary period. It further ordered the first applicant to pay
the costs of the proceedings. It held the applicant company jointly
and severally liable for the fine and the costs of the proceedings
and further ordered it to pay ATS 10,000 (EUR 726.23) in compensation
to Mr Eberharter under section 6 of the Media Act. Lastly, the court
ordered the publication of extracts from its judgment.
- The
court noted that the offending passage was to be understood in the
way it would be perceived by an average reader. The magazine Profil
was aimed at an understanding and intellectual readership and the
majority of readers could therefore be expected to discern the
satirical and humorous content of the article and the passage in
particular. This was not true, however, for a person who read the
article only superficially and without the necessary concentration.
Such a reader was confronted at the very beginning of the article,
namely in its third paragraph, with the impugned passage suggesting
that jealousy, rudeness and schadenfreude were obvious
characteristics of Stefan Eberharter. The content of the offending
statement could furthermore not be regarded as far-fetched, as in the
milieu of skiing experts Stefan Eberharter was seen as the “eternal
bridesmaid” in relation to Hermann Maier and known for his
rather ribald expressions. Lastly, the rest of the article only
informed the reader about the coverage of the accident in other media
and did not say anything more about Stefan Eberharter's character.
- The
applicants appealed and submitted in particular that when assessing
the meaning of the offending passage the court should not have
applied the standard of a hasty and unfocused reader. In any event,
the applicants' right to freedom of artistic expression outweighed
Mr Eberharter's personal interests. The article at issue was a
satirical and farcical essay on a subject of public interest. Stefan
Eberharter was mentioned as the representative of all other
ski-racing competitors who had no chance against the overpowering
Hermann Maier. The wish put in Eberharter's mouth, to the effect that
Hermann Maier should break his other leg too so that he could at last
win something, was a humorous, exaggerated and furthermore
comprehensible reaction. The humorous nature of the article was
already evident from its headline, strapline and first paragraphs.
Furthermore, the applicant company regularly published the first
applicant's columns, whose satirical and humorous nature was
therefore well-known to readers.
- On
26 June 2002 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicants' appeal. It noted that the reading and
understanding of the article demanded a very high level of
intelligence and concentration. The court of first instance had
therefore rightfully also taken account of readers who might peruse
the first paragraphs of the article without understanding its
satirical meaning and then discontinue their reading of the essay
because it was too demanding. The fact that the offending statement
was pure fiction and that Stefan Eberharter was only mentioned as a
representative for all competitors of Hermann Maier was not
discernable for such a reader. Stefan Eberharter was Hermann Maier's
main challenger and he was the first to benefit from Hermann Maier's
accident. Besides, any reader would assume that the author of the
article had used information not yet known to the public and that
there was a real background even behind comic exaggeration. The
reported reaction conveyed a negative image of a top athlete who was
expected to win in fair competition instead of wishing his competitor
serious bodily harm. Stefan Eberharter was presented as a most
egocentric person who would stop at nothing and accept any harm done
to his competitors. The court concluded that Stefan Eberharter's
personal interests outweighed the applicants' right to freedom of
artistic expression.
- This
judgment was served on the applicants' counsel on 5 August 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained under Article 10 of the Convention that the
Austrian courts' judgments violated their right to freedom of
expression.
Article
10 of the Convention, as far as relevant, 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.
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.”
- The
Government contested that argument.
A. Admissibility
- 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
- The
applicants contended that the offending statement concerned a
fictitious, but nevertheless conceivable and humanly understandable
thought by Mr Eberharter, which was clearly discernable as such
even by the hastiest of readers. The domestic authorities' reference
to a reader who perused the text in such a quick or unfocused manner
that he failed to understand its content was inadmissible. The
applicants were not responsible for such readers and the freedom of
expression guaranteed under Article 10 of the Convention was not
restricted by the fact that a reader might misunderstand the ideas
expressed. Any reader who honestly believed that Mr Eberharter had in
fact uttered the impugned statement before the press was simply
ignorant.
- The
first applicant's satirical essays had become a trademark of the
magazine Profil and the reader would thus expect the first
applicant to make use of satire. The text of the article moreover
contained other fictitious satirical statements, such as its remark
that an ORF reporter had interviewed Mr Maier's first replaced
bandage or that God himself had addressed Mr Maier and asked for
his help. In any event, the article's headings already indicated its
humorous and satirical approach.
- In
this article the first applicant had wished to criticise the national
hysteria after Mr Maier's accident. The essential statement behind
the impugned fictitious quotation of Mr Eberharter's thought was that
he had every reason to be happy about his strong rival dropping out
and the consequential chance of his winning, but had not expressed
this openly. In reality, Mr Eberharter had had extraordinary
ski-racing successes after Mr Maier's injury. Almost everyone in
Mr Eberharter's position would have had the same thought deep down
inside and the statement did not imply that he had reprehensible
character traits. In any event, it was clearly recognisable that he
had not expressed such words at all.
- The Government conceded that there had been
interference with the applicants' rights, but that it was prescribed
by law and sought to protect the reputation and rights of others.
Furthermore, the interference had been necessary and proportionate
within the meaning of paragraph 2 of Article 10 of the Convention.
The article had quoted and commented on excerpts from various
Austrian newspapers. In a total of eighteen quotations it had
referred to headlines and passages from various other articles
reporting statements which had actually been made in connection with
Hermann Maier's accident. The impugned statement, attributed to
Stefan Eberharter, was the only fictitious statement amongst all
those quotations. As the Austrian courts had rightly pointed out, in
those circumstances only a highly concentrated reader could have been
expected to realise that this passage was pure fiction with comic
exaggeration. The offending statement conveyed a negative image of Mr
Eberharter's person in a striking and blatant manner. Even
considering the satirical nature of this statement, the limits to the
guarantees under Article 10 of the Convention had clearly been
transgressed as there was no factual basis for the reproach of envy
and inappropriate glee. The Government also referred in this regard
to the judgment in Lopes Gomes da Silva v. Portugal (no.
37698/97, ECHR 2000 X) and the decision in Österreichische
Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria
(no. 17200/91, Commission decision of 2 December 1991,
unreported). Mr Eberharter's interest in protection against
statements which seriously affected his image as a sportsman had
outweighed the applicants' interest in embellishing their article,
which was of no particular public interest, by means of the impugned
statement. Moreover, the interference with the applicants' rights had
been proportionate as the fine imposed on the first applicant was a
suspended penalty and the amount of compensation the second applicant
had been ordered to pay was minor.
- The
Court notes that the domestic courts' decisions in the present case
constituted an interference with the applicants' rights under Article
10 of the Convention. The interference was prescribed by law and
pursued the legitimate aim of the protection of the rights of others.
The parties differed as to whether the interference in question had
been “necessary in a democratic society”.
- The Court reiterates in this regard that the test of
“necessity in a democratic society” requires it to
determine whether the interference complained of corresponded to a
“pressing social need”. The Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with a European supervision which
covers both the legislation and the decision applying it, even one
given by an independent court. The Court is therefore empowered to
give the final ruling on whether a “restriction” is
reconcilable with freedom of expression as protected by Article
10.
- The Court's task in exercising its supervisory
function is not to take the place of the competent domestic courts
but rather to review under Article
10 the decisions they have delivered in the exercise of their
power of appreciation. This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its
discretion reasonably, carefully or in good faith; what the Court has
to do is to look at the interference complained of in the light of
the case as a whole, including the content of the statement held
against the applicants and the context in which they made it.
- In particular, the Court must determine whether the
reasons adduced by the national authorities to justify the
interference were “relevant and sufficient” and whether
the measure taken was “proportionate to the legitimate aims
pursued”. In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article
10 (see, among other authorities, Cumpǎnǎ and
Mazǎre v. Romania [GC], no. 33348/96, §§ 88-90,
ECHR 2004 XI, with further references).
- In
the present case, the domestic courts found that Mr Eberharter's
personal interests in having his reputation protected had outweighed
the applicants' right to freedom of expression. They noted in this
regard that the reported reaction had conveyed a negative image of a
top athlete who was expected to win in fair competition instead of
wishing his competitor serious bodily harm. An unfocused reader could
not have been expected to discern the satirical and humorous content
of the article and impugned passage. Besides, any reader would have
assumed that there was a real background even behind comic
exaggeration.
- The
Court cannot find that these are “relevant and sufficient”
reasons to justify the interference at issue. It notes that the
article dealt with the road traffic accident in which the well-known
Austrian skiing champion Hermann Mayer had been injured, this
incident having attracted the attention of the Austrian media at the
time. The article, as was already evident from its headings and the
caption next to Mr Maier's photograph, was written in an ironic and
satirical style and meant as a humorous commentary. Nevertheless, it
sought to make a critical contribution to an issue of general
interest, namely society's attitude towards a sports star. The Court
is not convinced by the reasoning of the domestic courts and the
Government that the average reader would be unable to grasp the
text's satirical character and, in particular, the humorous element
of the impugned passage about what Mr Eberharter could have said
but did not actually say. This passage could at
most be understood as the author's value judgment on Mr Eberharter's
character, expressed in the form of a joke.
- The
Court notes that the impugned statement speculates on Mr Eberharter's
true feelings about his competitor's accident and suggests, firstly,
that he was pleased because he expected to benefit from this incident
and, secondly, that he hoped his competitor would be further
weakened. The Court acknowledges that such feelings, if actually
expressed, would seriously affect and damage any sportsman's good
image. However, the Court does not find that the same can be said
about this humorous passage, which clearly mentions that Mr
Eberharter made no such statement. The Court also notes in this
regard that Mr Eberharter had already previously commented on Mr
Maier's accident in public, obviously using different words. In sum,
the Court considers that the impugned passage about Mr Eberharter
remains within the limits of acceptable satirical comment in a
democratic society.
- Moreover,
the Court, having regard to the fact that the
Austrian courts convicted the first applicant of defamation
and ordered the applicant company to pay compensation and to publish
the judgment, cannot adhere to the Government's argument that
the Austrian courts showed moderation in interfering with the
applicants' rights in the present case. In particular, as regards the
first applicant, what matters is not that he was sentenced to a
relatively minor suspended penalty, but that he was convicted at all
(see Lopez Gomez da Silva, cited above, § 36).
- It follows
that the interference complained of was not “necessary in a
democratic society” within the meaning of Article
10 § 2 of the Convention. Consequently, there has been a
violation of Article 10 of the Convention.
II. 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
applicants claimed a total of 7,288.13 euros (EUR) including
value-added tax (VAT) in respect of pecuniary damage. This amount
consisted of EUR 726.73 for the compensation the applicant company
had been ordered to pay to Mr Eberharter, EUR 2,421.40 for the
reimbursement of the costs incurred by Mr Eberharter in the domestic
proceedings and EUR 4,140 for the loss of advertising revenue owing
to the publication of extracts from the judgment in the applicant
company's magazine Profil.
- The
Government contended that the amount claimed by the applicant company
for the loss caused by having to publish the judgment was excessive.
They contested, in particular, the inclusion of a surcharge of 15% on
the normal advertising rate to account for special placement of the
notice in the magazine's “Society” section. In any event,
the applicants had incorrectly calculated this surcharge as EUR 740
instead of EUR 510. They did not comment on the other claims.
- Having regard to the direct link between the
applicants' claims for reimbursement of the compensation and of the
costs of the domestic proceedings which had been awarded to Mr
Eberharter, and the violation of Article
10 found by the Court, the Court finds that the applicants are
entitled to recover the full amount of EUR 3,148.13 in this
connection. The Court further considers that there is also a direct
link between the applicant company's claim for the loss of
advertising revenue caused by the publication of the judgment in its
magazine and the violation found (compare Scharsach and News
Verlagsgesellschaft v. Austria,
no. 39394/98, § 50, ECHR 2003-XI). The Court agrees with
the applicants that the loss of advertising revenue should be
calculated on the basis of the normal advertisement rate for similar
publication. The advertisement rate for an equal-sized insert in the
applicant company's magazine amounted at the material time to EUR
3,400 to which a surcharge of 15% was to be added for special
placement. In the present case, the relevant provisions of the Media
Act obliged the applicant company to publish the judgment in a
section that was the same as, or similar to, that in which the
impugned original article had appeared. The Court accordingly awards
the applicants EUR 3,910 for the loss of advertising revenue. In sum,
the Court awards a total of EUR 7,058.13 in respect of pecuniary
damage. This amount includes VAT.
B. Costs and expenses
- The
applicants also claimed a total of EUR 2,397.64 for the costs and
expenses incurred in the domestic proceedings and EUR 2,561.46 for
those incurred in the proceedings before the Court.
- The
Government submitted that the amount claimed for costs in respect of
the domestic proceedings was excessive in so far as it included the
sum of EUR 127.70 for “review of the publication of the
judgment”. They further argued that the amount claimed in
respect of the present proceedings was also excessive.
- 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, the above criteria and the Government's comment, the
Court awards EUR 2,269.94 for costs in respect of the domestic
proceedings. The Court further finds that the sum claimed by the
applicants in respect of the present proceedings appears reasonable
and awards the full amount, namely EUR 2,561.46. In sum, the Court
awards a total of EUR 4,831.40 under the head of costs and expenses.
This amount does not include VAT.
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
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i)
EUR 7,058.13 (seven thousand and fifty-eight euros thirteen cents) in
respect of pecuniary damage;
(ii)
EUR 4,831.40 (four thousand eight hundred and thirty-one euros forty
cents) in respect of costs and expenses;
(iii) any tax that may be
chargeable on the latter amount;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 22 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
