FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68354/01 
by VEREINIGUNG BILDENDER KÜNSTLER 
against Austria

The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 12 March 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant association,

Having deliberated, decides as follows:

THE FACTS

The applicant association, Vereinigung Bildender Künstler Wiener Secession, has its seat in Vienna. It was represented before the Court by Schönherr OEG, a law firm based in Vienna. The Austrian Government (“the Government”) were 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

Vereinigung Bildender Künstler Wiener Secession is an association of artists with its seat in the Secession building in Vienna. The Secession, an independent gallery, is devoted entirely to exhibitions of contemporary art. One of the basic objectives of the association is to present current developments in Austrian and international art, and to cultivate an openness to experimentation.

Between 3 April and 21 June 1998 the applicant association held an exhibition on its premises. The exhibition, entitled “The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”), was intended as part of the celebrations of the association’s 100th anniversary. Among the works to be shown was a painting entitled “Apocalypse”, which had been produced for the occasion by the well-known Austrian painter Otto Mühl. The painting, measuring 450 cm by 360 cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Hermann Groer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr Meischberger, a former general secretary of the FPÖ until 1995, who at the time of the events was a member of the National Assembly (Nationalratsabgeordneter), a mandate he held until April 1999. Mr Meischberger was shown gripping the ejaculating penis of Mr Haider, his body being at the same time spattered with sperm from another FPÖ politician.

The exhibition, for which admission was charged, was open to the public.

On 12 June 1998 the painting was damaged by a visitor, who covered with red paint the part which showed, among others, Mr Meischberger. As a consequence of this incident the entire painted body and part of Mr Meischberger's face were covered with red paint.

Before and especially after this event the painting attracted the attention of the media, which reported on it and also published pictures of the painting.

On 22 June 1998 Mr Meischberger brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant association, seeking an injunction prohibiting it from exhibiting and publishing the painting. He further requested compensation in the amount of 20,000 Austrian schillings (ATS – approximately 1,400 euros (EUR)). He argued that the painting, showing him in sexual positions with several persons, debased him and his political activities and made statements as to his allegedly loose sexual life (lotterhaftes Intimleben). The black eye-bars did not prevent him from being recognised, namely because he was shown together with two other FPÖ politicians. He remained recognisable even after the event of 12 June 1998, which had further increased the publicity given to the painting. Furthermore, there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in Prague.

On 6 August 1999 the Vienna Commercial Court (Handelsgericht) dismissed Mr Meischberger's action. It noted that it had initially been intended to show the exhibition in Prague, Bucharest and Luxembourg as well; now the intention was to close down the exhibition. The court further found that it could be ruled out that the painting had adversely affected the applicant or divulged information about his private life, as the painting, which resembled a comic strip (“comixartig”), obviously did not represent reality. However, a painting showing the applicant in such an intimate position could, regardless of its relation to reality, still have a degrading and personally debasing effect. In the present case, however, the right of the applicant association to freedom of artistic expression outweighed Mr Meischberger's personal interests. When balancing the latter's interests against the interests of the applicant association, the court had regard in particular to the fact that the exhibition was dedicated to the association's artistic spectrum over the last hundred years, which included the work of the Austrian painter Otto Mühl. It further noted that the painting showed numerous other persons, among whom were friends and benefactors of the painter and also representatives of the FPÖ party, which had always strongly criticised Mr Mühl's work.

The painting in question could therefore be seen as kind of reply (Gegenschlag). In any event, Mr Meischberger's picture constituted only a rather small part of the painting and was therefore not striking. The court further added that there appeared to be no danger of recurrence (Wiederholungsgefahr) as the painting had been partly covered by red paint and Mr Meischberger was therefore no longer recognisable on it.

On 24 February 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held an oral hearing, granted an appeal on points of law and fact by Mr Meischberger, issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions, and ordered it to pay ATS 20,000 (approximately EUR 1,400) in compensation. It noted that Mr Meischberger's picture was only partly covered by red paint, so that part of his face, the shape of his head and his hairstyle were still recognisable. The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration. The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message, such as, for example, the statement that Mr Meischberger had disregarded sexual decency and morals. It therefore did not fall within the scope of Article 10 of the Convention, but in fact constituted a debasement of Mr Meischberger's public standing (Entwürdigung öffentlichen Ansehens). The applicant association could not justify the exhibition of the painting under the artistic freedom protected by Article 17a of the Basic Law (Staatsgrundsgesetz). There was, furthermore, nothing to indicate that the applicant association would abstain from exhibiting the painting in the future, so that there was a danger of recurrence.

On 18 July 2000 the Supreme Court (Oberster Gerichtshof) dismissed an appeal by the applicant association. It noted that the Court of Appeal had not questioned the fact that the painting fell within the scope of protection provided by Article 17a of the Basic Law but, weighing the guarantee of artistic freedom enshrined in that provision against Mr Meischberger's personal rights as protected by section 78 of the Copyright Act, had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner. As to the question whether Mr Meischberger could still be recognised despite the painting being covered with red paint, the Court of Appeal had not contradicted the documents contained in the court file and there was therefore no need for a rectification.

That decision was served on the applicant association's counsel on 13 September 2000.

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.”

Artistic freedom is guaranteed by Article 17a of the Basic Law (Staatsgrundgesetz), which provides:

"There shall be freedom of artistic creation and of the publication and teaching of art."

COMPLAINT

The applicant association complained under Article 10 of the Convention that the Austrian courts' decisions forbidding it to exhibit any further the painting at issue had violated its right to freedom of expression.

THE LAW

The applicant association complained under Article 10 of the Convention of a violation of its right to freedom of expression.

Article 10, 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 argued that the Austrian courts' injunction did not constitute an interference with the applicant association's rights within the meaning of Article 10 of the Convention. They submitted in that regard that Article 10 did not protect artistic freedom as such but only provided protection to artists who intended to contribute through their work to a public discussion of political or cultural matters. The present reproduction of public figures in “group sexual situations” could, however, hardly be regarded as a statement of opinion contributing to a cultural or political debate.

In the alternative, the Government argued that the interference at issue had been lawful and had served the legitimate aim of protecting morals and the reputation and rights of others. As regards the proportionality of the interference, they argued that since its inauguration, the exhibition at which the painting had been shown had been at the centre of media attention, precisely because of the painting itself. The interest of the media had become even more intense after the painting had been partly damaged, so that after the event in question the part of the painting affected and the fact that it showed Mr Meischberger was known not only to visitors of the exhibition but to the general public. The painting had been displayed in nearly all Austrian newspapers and on television. Accordingly, at least from that date on, Mr Meischberger's personal interests had prevailed over the interests of the applicant association in exhibiting the painting. It was also irrelevant whether Mr Meischberger was a subject of public interest at the time of the events as the painting could by no means be regarded as part of a public discussion of general interest or as relating to Mr Meischberger in his public capacity. Nor could Mr Meischberger be expected to comment in public on the painting since the activities depicted in it could certainly offend the sense of sexual propriety of persons of ordinary sensitivity. The Government lastly pointed out that at the time of the interference the exhibition at issue had already been closed down and that throughout the duration of the exhibition the painting had actually been on display. The applicant association had not intended to exhibit the painting abroad. Furthermore, the prohibition on exhibiting the painting any further concerned only the applicant association as the exhibitor and not the owner of the painting, namely the artist and his manager. Having regard to all these elements, the Government argued that the interference at issue was proportionate within the meaning of paragraph 2 of Article 10 of the Convention.

The applicant association argued that the public exhibition of a painting contributed to a debate between the artist, the exhibitor and the public and was therefore protected under Article 10 of the Convention. It accepted that the impugned interference was prescribed by law, but maintained that the interference had neither been necessary nor proportionate. It submitted that the Government's submissions as regards the protection of morals were irrelevant as in the present case the domestic courts had based their decisions merely on Mr Meischberger's prevailing personal interests as protected under section 78 of the Copyright Act. Mr Meischberger could not, however, claim any personal interest worth protecting as the painting obviously did not state or suggest that the way in which he was portrayed corresponded to his actual behaviour. The painting presented the artist's personal history in an allegorical way and depicted, among several other well-known persons, the painter himself and some of his friends and benefactors. All these persons were presented in sexual acts, reflecting the painter's conception of the interrelation between power and sexuality. Mr Meischberger had been one of the persons who had characterised the history of the FPÖ party in the past few years, and he had been portrayed with the other three members as an allegory of that party, which had always strongly criticised the painter's work. Furthermore, Mr Meischberger and, in any event, the actions he considered libellous were not recognisable after the painting had been partly damaged. In the applicant association's view, the fact that he had instituted proceedings only after the painting had been partly damaged demonstrated that rather than to protect his personal interests he was aiming to discredit the painter's work.

The applicant association lastly pointed out that the Austrian courts' decisions that the painting violated Mr Meischberger’s rights as protected under section 78 of the Copyright Act, and the injunction prohibiting any further exhibition of the painting, concerned not only the applicant association but also the painter himself and any other third person wishing to exhibit the painting and were equivalent to the deletion of the painting from the collective memory. As an example they referred to the 2004 exhibition concerning the work of Otto Mühl at the Vienna Museum for Applied Arts (Museum für Angewandte Kunst), where the painting had not been shown.

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 by a majority

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

Santiago quesada Christos rozakis 
 Deputy Registrar President

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VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA DECISION


VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA DECISION