THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62746/00 
by “WIRTSCHAFTS-TREND” ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH (no. 2) 
against Austria

The European Court of Human Rights (Third Section), sitting on 14 November 2002 as a Chamber composed of

Mr I. Cabral Barreto, President
 Mr L. Caflisch
 Mr P. Kūris
 Mr J. Hedigan
 Mrs M. Tsatsa-Nikolovska
 Mrs H.S. Greve
 Mrs E. Steiner, judges
and  Mr  V. Berger, Section Registrar,

Having regard to the above application having deliberated, decides as follows:

 

THE FACTS

The applicant company,  “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH, is the owner and publisher of the weekly news magazine Profil with its seat in Vienna. It is represented before the Court by Giger, Ruggenthaler & Simon, lawyers practising in Perchtoldsdorf/Austria.

A.  The circumstances of the case

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

On 21 June 1999 the news magazine Profil published an article with excerpts of the minutes of preliminary investigations in criminal proceedings against three aliens’ police officers, who had, on 1 May 1999, accompanied a deportation flight on which the deportee had died under unclear circumstances. The incident, which received high press coverage in Austria, evoked a public debate on deportation practices, in particular as regards the use of handcuffs and adhesive tapes for breaking the resistance of the deportee. Under the heading “Lethal trick” (“Tödlicher Trick”) the article at issue dealt with extracts of conflicting statements the aliens’ police officers had made on the incident and their conduct during the deportation flight, in particular at the Austrian Embassy in Sofia, the Vienna Public Security Office (Sicherheitsdirektion) and the Korneuburg Regional Court (Landesgericht). The article finished with the quotation of one of the officers who stated that “we were surprised and assumed at first that it was a trick” that, after his handcuffs had been opened and the adhesive tapes, which had been place over his mouth and nose, had been taken away upon the landing, the deportee did not react to their request to follow them. “Twenty minutes later a Bulgarian doctor confirmed the death of the Nigerian deportee.” While throughout the article the police officers concerned were referred to with their first name and the initial of their last name, Mr K.’s job title and his full last name were disclosed in an eye-catching position directly above the headline.

On 20 August 1999 Mr K. filed a compensation claim under section 7a § 1 of the Austrian Media Act (Mediengesetz) against the applicant company.

On 24 August 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed the claim on the ground that Mr K. had failed to substantiate which legitimate interests had been violated in his case.

On 11 October 1999 the Vienna Court of Appeal (Oberlandesgericht), granting Mr K.’s appeal, quashed the lower court’s decision and referred the case back to it to establish whether or not any legitimate interests of Mr K. had been injured through the disclosure of his identity.

On 10 November 1999 the Regional Court, after having held a hearing, ordered the applicant company to pay ATS 25,000 (EUR 1,816) in compensation to Mr K. The court noted that at the time of the publication of the article, criminal investigation proceedings and disciplinary proceedings were pending against Mr K. and that he was suspended from office. Since the disclosure of Mr K.’s full name, he suffered social exclusion in his village and was exposed to debates with relatives and within his circle of acquaintances concerning the incident. As a consequence of the article, his quality of life had changed to the detriment. Therefore, the disclosure of Mr K.’s full name violated his legitimate private interests, which prevailed over the public interest in the publication of such details, pursuant to section 7a § 1 of the Media Act.

In its appeal of 1 February 2000 the applicant company complained that the Regional Court’s balancing of interests was not in line with this Court’s case law under Article 10, as there was no “pressing social need” to impose a fine.

On 26 April 2000 the Court of Appeal, after having held a hearing, dismissed the appeal and confirmed the lower court’s judgment. It noted that topics such as performance of police officers, treatment of asylum seekers and potential abuse of the exercise of authority are of predominant public interest. However, modalities of deportation practices, as reported in the article, could also be criticised without disclosing the identity of the involved police officer. The public interest in the disclosure of the identity of the person concerned could be outweighed by that person’s legitimate interests. Moreover, in the light of the early stage of the criminal proceedings against Mr K., the lower court had correctly given priority to his legitimate interests.

B.  Relevant domestic law

Section 7a § 1 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 legitimate interests of that person are thereby injured 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)  Legitimate interests of the victim shall in any event be injured 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 substantially prejudice the victim’s advancement.”

COMPLAINT

The applicant company complains under Article 10 of the Convention that the court order to pay compensation has infringed its right to freedom of expression, in particular to impart information.

THE LAW

The applicant company complains of a breach of its right to freedom of expression and to impart information as set out under Article 10 of the Convention, which, 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 Court considers that the imposition of the fine on the applicant company constituted an interference with the applicant company’s rights under Article 10. It was prescribed by law, namely by section 7a § 1 of the Media Act, and served the legitimate aim of protecting the reputation or rights of others.

The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-234, § 37). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 28, § 63; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 46, 26 February 2002).

The Court reiterates that the notion of necessity implies a “pressing social need”. The Contracting States enjoy a margin of appreciation in this respect, but this goes hand in hand with a European supervision which is more or less extensive depending on the circumstances. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Convention organs must determine, in the light of the case as a whole, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 25, §§ 39-40; The Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, p. 28-29, § 50; Jerusalem v. Austria, no. 26958/95, §§ 33-34, 27 February 2001).

The Court notes that the subject-matter of the present article was an issue of public concern and was part of a political debate on the lawfulness of deportation practices in Austria. However, the report also contained information on criminal proceedings against the police officers, which were pending at an early stage. The Court observes that the applicant company was not prevented from reporting about all details concerning the issue except for the full name of the police officer.

As regards the reasons given by the Regional Court and the Court of Appeal, the Court notes that they took into consideration the public interest in the disclosure of the incident of the deceased deportee on his deportation flight and the alleged abusive exercise of authority of the accompanying officers. The domestic courts weighed these public interests against private interests of the aliens’ police officer concerned, against whom criminal investigation proceedings were pending at an early stage. Both courts found that the disclosure of his identity had negatively affected his private and social life and had therefore infringed his legitimate interests. The Court considers that the Austrian courts gave relevant reasons, having regard to the early stage of the criminal proceedings against Mr K. when particular care had to be taken to protect him against a “trial by the media” and to give effect to the presumption of innocence under Article 6 § 2 of the Convention.

The Austrian courts concluded that Mr K.’s legitimate private interests prevailed over the public interest in the disclosure of his identity. The Court of Appeal noted in its judgment of 26 April 2000 that reporting on the modalities of deportation practices and criticism thereon could be done without disclosing the identity of a concerned police officer. The disclosure of his full name did not add anything of public interest to the information already given in the article that could have outweighed the interests of the person concerned in non-disclosure of his identity. The Court considers these reasons sufficient for the imposition of the relatively modest fine on the applicant company. Therefore, it finds that the domestic courts did not overstep their margin of appreciation and that the interference cannot be regarded as disproportionate in the circumstances of the case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

     Vincent Berger  Ireneu Cabral Barreto 
 Registrar President

ZEITSCHRIFTEN-VERLAGSGMBH v. AUSTRIA DECISION


ZEITSCHRIFTEN-VERLAGSGMBH v. AUSTRIA DECISION