FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15653/02 
by  WIRTSCHAFTS-TREND ZEITSCHFRIFTEN-VERLAGSGESELLSCHAFT MBH (no.3) 
against Austria

The European Court of Human Rights, sitting on 31 August 2004 as a Chamber composed of

Sir Nicolas Bratza, President
 Mrs V. Strážnická
 Mr J. Casadevall
 Mr R. Maruste
 Mrs E. Steiner
 Mr L. Garlicki, 
 Mrs E. Fura-Sandström, judges,

And Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 27 March 2003,

Having regard to the observations submitted by the respondent Government and the observations submitted by the applicant company,

Having deliberated, decides as follows:

 

THE FACTS

The applicant company, the Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft mbH, is a limited liability company with its seat in Vienna. It is represented before the Court by Giger, Ruggenthaler & Simon, lawyers practising in Vienna. The respondent Government are represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant company is the owner and publisher of the weekly magazine “Profil”.

In its issue 25/1998 the applicant company published an article about Mr R., at that time a member of Parliament, and his cohabitee Mrs G. The article, with the title “Diary of an escape” described the couple’s escape from Austria in April 1998 as Mr R. was suspected of having committed the offences of aggravated fraud (Betrug) and fraudulent conversion (Untreue). The article was accompanied by a photo, which appeared on another page, showing Mrs G. standing beside Mr R. In the report the couple was described as “the Lower Austrian mutation of “Bonnie and Clyde”. After an international arrest warrant had been issued, Mr R. was arrested in Brazil in June 1998. At that time, great public interest in the criminal proceedings against him existed.

The article contained the following statements:

“...Thus, the Lower Austrian mutation of ‘Bonnie and Clyde’ started on the last part of their trip, a four hour lasting bus ride... (Also brach die niederösterreichische Mutation von ‘Bonnie and Clyde’ zur letzten Etappe, einer vierstündigen Busfahrt...auf.)

...The first two weeks, ‘Bonnie and Clyde’ hardly ever left the hotel. (Die ersten beiden Wochen verlassen ‘Bonnie und Clyde’ das Haus praktisch nie.)

...’Bonnie and Clyde’ from Lower Austria wish to rent the Mayor’s bar. (‘Bonnie und Clyde’ aus Niederösterreich wollen die Bar des Bürgermeisters pachten.)

...’Bonnie and Clyde’ are dreaming of a decent life as pub owners... (‘Bonnie und Clyde’ träumen von einem bescheidenen Leben als Barbetreiber.)”

The article, when describing the arrest of Mr R., further stated:

“Mrs G., against whom no suspicion exists, stays behind. (Zurück bleibt G., gegen die nichts vorliegt.)”

On 9 February 1999 Mrs G. applied for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) to the Wiener Neustadt Regional Court (Landesgericht) against the applicant company. She requested that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on the criminal proceedings against Mr R. or, in the alternative, that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on her and Mr R. as “Bonnie and Clyde”. Furthermore, she requested an order for the publication of the judgment in the applicant company’s magazine.

She argued that the publication of her picture in connection with a report on the criminal proceedings against Mr R. violated her legitimate interests under Section 78 of the Copyright Act and that the comparison with the famous criminals “Bonnie and Clyde” from the thirties, whose story was the basis of a film produced in the sixties, could have given the impression that she had been involved in the offences of which Mr R. was accused.

The applicant company, in its observations, argued that the report at issue expressly mentioned that there were no criminal proceedings pending against Mrs G. and that the report was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts. Moreover, she had willingly given interviews to the media and had her pictures taken by journalists. As regards the comparison of Mrs G. with “Bonnie”, the applicant company submitted that the reader of its magazine understood “Bonnie and Clyde” as a synonym for a couple on the run and not for violent criminals. Finally, it contended that the great public interest in the events justified the publication of Mrs G.’s picture.

On 19 February 1999 the Wiener Neustadt Regional Court granted an interim injunction (einstweilige Verfügung). It found the measure justified as the interest in the publication of Mrs G.’s picture violated her legitimate interests.

On 27 April 1999 the Court of Appeal (Oberlandesgericht) allowed the applicant company’s appeal and dismissed Mrs G.’s application.

On 13 September 1999 the Supreme Court (Oberster Gerichtshof) partly allowed Mrs G.’s extraordinary appeal on points of law and granted the interim injunction she had requested in the alternative, i.e. it ordered the applicant company to refrain from publishing Mrs G.’s picture without her consent in connection with reporting on her and Mr R. as “Bonnie and Clyde”.

The Supreme Court observed that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests and that the publication of her picture had to be considered together with the content of the published report. The court referred further to its case-law in which it had found that the publication of the picture of a spouse of a suspect was not of any informative value and that the concerned spouse’s interest in secrecy, therefore, outweighed the interest of information. The court found, however, that in the present case Mrs G. was far more involved in the case of Mr R. than simply being Mr R.’s cohabitee or girl friend, as she had prepared the escape with him and had finally escaped with Mr R. Therefore, the applicant company’s interest in publishing her picture in principle outweighed Mrs G.’s legitimate interests in secrecy.

The court then argued that the text of the article at issue, compared Mrs G. with the female partner of the violent criminals “Bonnie and Clyde” and could give the impression to the readers of the magazine that Mrs G. as “Bonnie” had been involved in the criminal offences of her partner. The Supreme Court, thus, concluded that, although it seemed that Mrs G. had consented to the publication of her picture in connection with the criminal proceedings against Mr R., her legitimate interests were violated by the publication of her photo in combination with a comparison with the criminal “Bonnie”.

On 2 February 2001 the Wiener Neustadt Regional Court granted a permanent injunction prohibiting the applicant company from publishing the Mrs G’s picture while comparing her and Mr R. with “Bonnie and Clyde” or while connecting her with the commission of criminal offences.

On 3 May 2001 the Court of Appeal dismissed the applicant company’s appeal.

On 12 September 2001 the Supreme Court, referring to its decision of 13 September 1999, rejected the applicant company’s extraordinary appeal on points on law. This decision was served on 2 October 2001.

B.  Relevant domestic law

Section 78 of the Copyright Act, in so far as relevant, reads as follows:

“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”

This provision has been interpreted in the Supreme Court’s case-law. In particular the Supreme Court has found that in determining whether the publication of a person’s picture violated his or her “legitimate interests” regard is to be had to the accompanying text. Where the publisher of the picture claims that there was a public interest in its publication, the courts have to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court has constantly held that there is no predominant public interest in the publication of the suspect’s picture if it has no additional independent information value. The only effect is that the intensity of such reporting is increased by attaching the suspect’s picture and, thus, making his or her appearance known to the public at large (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 32, ECHR 2000-I, with reference to MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33).

COMPLAINT

The applicant company complained under Article 10 of the Convention that the Austrian courts’ decisions violated its right to freedom of expression.

THE LAW

The applicant company alleged that its right to freedom of expression under Article 10 of the Convention had been infringed by the Austrian courts’ decisions. Article 10 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 accepted that the domestic courts’ decisions constituted an interference with the applicant company’s right to freedom of expression. They further submitted that the measure at issue had a legal basis under Austrian law, i.e. Section 78 of the Copyright Act and pursued a legitimate aim, namely the protection of the rights and the reputation of others.

As to the necessity of the interference, the Government commented that Mrs G. was pilloried by the publication of her picture as she had not been a ‘person of public life’ before. They argued further that the Austrian courts did not prohibit the publication of Mrs G.’s photo in itself but its publication in connection with a comparison with the criminal couple “Bonnie and Clyde”. Referring to the domestic courts’ findings, the Government stated that the characterisation of Mrs G. as “Bonnie” created the impression that Mrs G. had participated in the offences of Mr R., all the more so as Mrs G. had been employed at the same workplace as Mr R.

The applicant company stated that it had nothing to add to the arguments already submitted in its application. There it had argued that the interference with its right to freedom of expression was not necessary, in particular as the article explicitly stated that no suspicion existed against Mrs G. Further they argued, that Mrs G. had laid herself open to public scrutiny when escaping with Mr R. who was a member of Parliament at the material time. Moreover, the applicant company submitted that Mrs G. had willingly given interviews to the media and had her picture taken and that there had been great public interest in the events at issue.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar President

WIRTSCHAFTS-TREND v. AUSTRIA (no. 3) DECISION


WIRTSCHAFTS-TREND v. AUSTRIA (no. 3) DECISION