AS TO THE ADMISSIBILITY OF
Application no. 66298/01
by WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH (no. 2)
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 9 February 2001,
Having regard to the observations submitted by the respondent Government and the observations submitted by the applicant company,
Having deliberated, decides as follows:
The applicant company is the Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft mbH, 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 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). 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 criminial 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 20 November 1998 Mrs G. brought proceedings against the applicant company claiming compensation under Section 6 of the Media Act (Mediengesetz) for defamation. Further she requested supplementary measures under the Media Act, such as the publication of the judgment. She stressed that the applicant company, by publishing the article at issue, had committed the offence of defamation under the Criminal Code (Üble Nachrede).
She argued 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 was also involved in the offences of Mr R.
On 7 April 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed Mrs G.’s claim. It found that the average reader would have understood “Bonnie and Clyde” as a synonym for a couple on the run and that it had been a pictorial description with a humorous and entertaining message. It considered that the average reader would have connected “Bonnie” with a woman who follows her partner “through thick and thin” and that the characterisation as “Bonnie” did not amount to an accusation of having participated in the offences of Mr R.
On 4 November 1999 the Vienna Court of Appeal (Oberlandesgericht) quashed this decision and remitted the case to the Regional Court. It observed that “Bonnie and Clyde” had been violent criminals and found that the established connection between Mrs G. and “Bonnie” created an “inherent statement of having participated in criminal acts” even though “it had been expressly stated in the article that no suspicion had existed against Mrs G”. It, therefore, concluded that the applicant company had committed the offence of defamation under Section 111 § 1 of the Criminal Code by publishing the article at issue and stated that its finding had to be considered by the Regional Court in its new decision.
On 3 February 2000 the Regional Court sentenced the applicant company to pay compensation of ATS 20,000 (approximately 1,450 euros) for defamation and ordered it to publish that judgment in its magazine. Following the Court of Appeal’s line of argument it found, referring to the above mentioned passages of the incriminated article, that:
“... the well-known movie ‘Bonnie and Clyde’ described two ordinary people who make the American dream of liberty and wealth come true by stealing cars, robbing banks and killing people. (...) The reader primarily associates Bonnie with a criminal who had, together with her partner, robbed innumerable banks and had killed 14 persons within two years. (...) Nobody would have connected Bonnie with a naive angel, who followed her partner devotedly but, rather, with a woman who would kill to assist the common purpose ‘escape’. (...) Beyond doubt the reader is forced to make a connection with capital crime. (...) The allegation of participating in criminal offences constitutes defamation within the meaning of Section 111 § 1 of the Criminal Code.”
On 22 March 2000 the applicant company filed an appeal and stressed, inter alia, that the incriminating passages had to be considered in connection with the article as a whole. It submitted that the article was written in an ironical style and could not have given the impression that Mrs G had committed any criminal acts.
On 9 August 2000 the Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision as a whole.
B. Relevant domestic law
Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
The applicant company complained under Article 10 of the Convention that the Austrian courts’ decisions violated its right to freedom of expression.
The applicant company alleged that its right to freedom of expression under Article 10 of the Convention has been infringed by the Austrian courts’ decisions. Article 10, as far as relevant, provides:
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 there has been an interference with the applicant company’s right to freedom of expression. The measure at issue had a legal basis in Austrian law, namely Section 6 of the Media Act read in conjunction with Section 111 of the Criminal Code 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 contented that the legendary criminal couple “Bonnie and Clyde” was well-known in Austria from various movies, and that the name “Bonnie” was primarily associated with a woman who committed crimes together with her partner and then tried in vain to escape criminal prosecution. The characterisation of Mrs G. as “Bonnie” created, therefore, the impression that Mrs G. had participated in the offences of Mr R. The expression “Lower Austrian mutation of Bonnie and Clyde” further ridiculed Mrs G. The Government contented that the sole fact that Mrs G. had escaped with her life-companion, Mr R., was not sufficient to place her in the arena of public debate requiring her to display a higher degree of tolerance vis-à-vis criticism. Finally, the Government contented that in the view of the relatively low amount of compensation the applicant company was ordered to pay, the Austrian courts’ decisions could not be regarded as disproportionate either.
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, it had argued that Mrs G. had laid herself open to public scrutiny when escaping together with a member of Parliament and had given interviews to the media. Moreover, 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
WIRTSCHAFTS-TREND v. AUSTRIA (no. 2) DECISION
WIRTSCHAFTS-TREND v. AUSTRIA (no. 2 DECISION