AS TO THE ADMISSIBILITY OF
Application no. 34315/96
by KRONE VERLAGS GmbH & CoKG
The European Court of Human Rights (Third Section), sitting on 15 May 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant company is the publisher of a newspaper (Kronenzeitung) with its registered office in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3, 4, 7, 8 and 15 March, as well as on 3 and 16 May and 29 June 1995, the applicant company published, in its Carinthian regional edition (Lokalausgabe), articles on the financial situation of a certain Mr. Posch who, at that time, was employed as a teacher and, at the same time, was a member of the Austrian National Assembly (Nationalrat) and the European Parliament. The articles commented on these professional tasks and, in harsh terms, alleged that he received three salaries unlawfully as, according to Austrian law, he was not entitled to a teacher’s salary during his membership of the European Parliament. He was, inter alia, referred to as someone unjustly enriching himself. These articles were accompanied by photographs of Mr. Posch.
On 18 August 1995 Mr. Posch applied for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) to the Klagenfurt Regional Court against the applicant company. He requested that the applicant company be ordered to refrain from publishing his picture in connection with statements describing him as somebody who received his salaries unlawfully and who benefited from unlawful privileges. Furthermore, he requested an order for the publication of the judgment in the applicant company’s newspaper, indicating the grant of damages and the injunction (einstweilige Verfügung).
On 21 September 1995 the applicant company filed a statement of defence (Klagebeantwortung) in which it argued, inter alia, that the publication of the impugned articles had been justified under Article 10 of the Convention.
On 10 October 1995 the Klagenfurt Regional Court granted an interim injunction. It found the measure justified because the plaintiff’s interest in prohibiting the publication of his photograph outweighed the applicant company’s interest in the publication of the illustrated articles, in particular as the publishing of the pictures per se had no special information value (Nachrichtenwert).
On 4 January 1996 the Klagenfurt Regional Court granted the permanent injunction prohibiting the applicant company from publishing the plaintiff’s picture in connection with the above mentioned or similar articles. It dismissed the remainder of the action. The court found that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests. When considering such interests, account had to be taken of whether the person concerned was known to the public, because the publication of the photographs of unknown persons made it possible to identify them later. The court found that Mr. Posch’s face was not generally known, despite his membership of the National Assembly. Therefore, his legitimate interests had been infringed by creating the possibility of identifying him. The applicant company was of course entitled to report on the plaintiff’s activities and financial situation, but there was no legitimate interest in publishing his picture as it had, per se, no information value. Furthermore, it was irrelevant for this specific question whether the content of the articles was true or false.
On 8 February 1996 the applicant company appealed. It argued that the court had erred when it found that the plaintiff’s interests outweighed the applicant company’s interests, as the public in Carinthia, who had elected Mr. Posch, was interested in his various salaries. Therefore the court should have also taken evidence – as had been offered by the applicant company – in order to prove the truth of the articles. Furthermore, the plaintiff was known to the public as he was Carinthian and had participated in several events during the election campaign there. Thus it was incorrect that Mr. Posch’s face was unknown.
On 9 July 1996 the Graz Court of Appeal dismissed the appeal. It found that the publication of the pictures together with the articles had been unnecessary. In any case, the information value of the pictures could not outweigh Mr. Posch’s interests. It also confirmed the legal opinion of the Regional Court that, for the purposes of Section 78 of the Copyright Act, it was irrelevant whether or not the publication contained true information.
On 15 October 1996 the Supreme Court declared inadmissible the applicant company’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs). It confirmed the findings of the Court of Appeal, observed that the publication of the plaintiff’s pictures had no additional information value, and therefore concluded that it had been unnecessary. On 4 November 1996 this decision was served upon counsel for the applicant company.
B. Relevant domestic law
Section 78 of the Copyright Act, insofar 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.”
The applicant company complains under Article 10 of the Convention that the injunction issued by the Austrian courts violated its right to freedom of expression.
The applicant company complains under Article 10 of the Convention that the injunction prohibiting them from making certain statements with regard to Mr. Posch violated its right to freedom of expression.
The relevant part of Article 10 of the Convention 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....
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 ... for the protection of the reputation or rights of others....”
The Government accept that the injunction interfered with the applicant’s right to freedom of expression. However, the measure at issue was justified under paragraph 2 of Article 10 as it was “prescribed by law”, namely Section 78 of the Copyright Act, and pursued the legitimate aim of protecting the rights and reputation of others. Furthermore, it was necessary in a democratic society in the interests of that aim.
In this respect the Government submit that the Austrian courts which granted the impugned injunction have struck a fair balance between the public’s right to be informed about its elected representatives and their emoluments and the protection of the reputation of a politician. The Government argue further that pictorial reporting should essentially be judged by other standards than verbal reporting in view of the dangerous effects a picture may have on a person’s security. There was no urgent need to publish a picture of Mr. Posch while the tendency of the applicant’s style of reporting was to disparage Mr. Posch in the eyes of the public. The bold print of the head lines and the placing of the article on the front page were sufficient to attract the readers’ attention. The picture had no additional informative or news value. Moreover, the injunction was a proportionate measure as the applicant company was not generally forbidden to publish photographs of Mr. Posch but only prohibited from doing so in a closely circumscribed context.
In the Government’s view the present case had to be distinguished from the News VerlagsGmbH & CoKG v. Austria judgment (no. 31457/96, ECHR 2000-I) on important factual differences. In the former case the Court attached particular importance to the fact that the person whose picture had been published was suspected of criminal offences directed against the foundations of a democratic society and the picture in that case had been published in the context of reporting on court proceedings. Both elements were absent in the present application.
The applicant company submits that the injunction at issue was an interference with its right to freedom of expression which was not justified under paragraph 2 of Article 10 of the Convention. In the first place the interference was not prescribed by law because Section 78 of the Copyright Act left a very wide margin of interpretation to the domestic courts, in particular as regards the term “justified interests” of the person in the picture. Furthermore, it did not pursue a legitimate aim as required by paragraph 2 of Article 10.
The applicant company submits that the injunction was not necessary in a democratic society. The public has an interest in being informed about politicians and their conduct and, in particular, about politicians like Mr. Posch who was not just a local politician of limited importance but a member of the Austrian Parliament, as well as a member of the European Parliament. The report did not concern issues relating to that politician’s private sphere but a matter which was directly connected to his public functions, as the article criticised the fact that he received at the same time salaries from different functions and sources. Informing the public of such issues is an essential task of the media and, in this context, a politician should accept that his picture be published.
In the applicant company’s view there is no material difference between the present application and the aforementioned case of News VerlagsGmbH & CoKG v. Austria as the essential argument of the domestic courts for issuing the injunctions was the same, namely that in their view there was no additional informative or news value in publishing the picture of the person concerned. This was not the test which should be applied under Article 10 when deciding on an injunction. The domestic courts should rather examine whether or not the arguments raised in the accompanying text were true or not.
The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
S. Dollé J.-P. Costa
KRONE VERLAGS GmbH & CoKG v. Austria DECISION
KRONE VERLAGS GmbH & CoKG v. Austria DECISION