THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72331/01 
by KRONE VERLAGS GMBH & CO KG 
against Austria

The European Court of Human Rights (Third Section), sitting on 22 September 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch,

Mr C. Bîrsan, 
 Mr V. Zagrebelsky
 Mrs E. Steiner
 Ms R. Jaeger, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 11 June 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicant company, Krone Verlags GmbH & CoKG, is the owner of the daily newspaper Neue Kronenzeitung with its registered office in Vienna. The respondent 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

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

In its issue of 9 May 1997 the applicant company published an article about the alleged harassment and rape by a prince of two winners of beauty contests, Ms O and Ms S, during a representation mission in Monte Carlo. The article quoted Ms R, the daughter of the managing director of the Austrian public relations agency which had organised the beauty contests, as saying that “The prince cannot rape, he is very ill. We [Ms R and her father] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident.” Ms R made these statements during a telephone interview with a journalist of the applicant company.

Thereupon, Ms O and Ms S filed a private prosecution for defamation against Ms R.

On 3 October 2000 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), having heard the private prosecutors, Ms R, the applicant company and a number of witnesses, convicted Ms R of defamation in a printed medium under Section 111 § 2 of the Criminal Code (Strafgesetzbuch), imposed a fine of approximately EUR 1,000 on her and ordered her to pay the costs of the proceedings. It noted that the offence was a media offence (Medieninhaltsdelikt), which could only be committed through publication in the applicant company’s newspaper, and found the applicant company jointly and severally liable (Solidarhaftung) for the fine and the costs pursuant to Section 35 of the Media Act (Mediengesetz).

In its plea of nullity against this judgment the applicant company, relying on Article 10 of the Convention, complained about its joint and several liability under Section 35 of the Media Act. It submitted in particular that the court should have interpreted this provision in conformity with Article 10 of the Convention, which prescribed joint and several liability only for failure of compliance with journalistic diligence. The article in question was written in an objective manner, reporting about the conflicting versions of the incident in Monte Carlo, and correctly quoted Ms R’s statement without taking sides.

On 2 April 2001 the Vienna Court of Appeal (Oberlandesgericht), partly allowing Ms R’s appeal, suspended the fine for a three years’ probationary period. For the rest, it dismissed the applicant company’s plea and confirmed the Regional Court’s judgment. It held that the publisher’s liability under Section 35 of the Media Act was linked to a media offence, which could be committed not only by an employee of a media company but also by a third person. The commission of such an offence fell within the sphere of risk of an owner and publisher who printed a defamatory statement in his newspaper. His subsequent liability was based on considerations of causality and did not imply any reproach of guilt. The legislature’s choice in favour of joint and several liability of the owner and publisher reflected the balance struck between the interests involved, namely the interest of the media to exercise the right to freedom of expression, on the one hand, and, on the other, that of the person desirous of protecting his/her reputation, in favour of the interests of the defamed victim in securing financially the proceedings instituted to obtain legal redress. The media owner’s strict liability was in line with his obligation to provide his newspaper for the publication of the judgment.

Subsequently Ms O and Ms S requested the applicant company to pay the legal costs of the defamation proceedings. Having paid, the applicant company filed a claim against Ms R and requested reimbursement of ATS 105,480.

On 9 September 2002 the Favoriten District Court (Bezirksgericht) partly granted the applicant company’s action and ordered Ms R to pay the applicant company 50 % of the costs of the defamation proceedings. On 25 March 2003 the Vienna Regional Court confirmed this decision.

On 16 October 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant company’s appeal. It noted that Section 35 of the Media Act was not meant to disburden a defamer. The applicant company had paid another person’s debt for which it was only liable and was, in principle, entitled to the full amount of the sum paid.

However, the special internal relationship (Innenverhältnis) between the applicant company and Ms R stood against full reimbursement, as Ms R had to be considered as an employee (Medienmitarbeiter) of the applicant company in the broadest sense of the term. The court noted in this regard that the applicant company had used Ms R’s statements for its own economic interests. Ms R could only commit the offence via the applicant company which had published the impugned statements. Furthermore, Ms R had acted free of charge and the interview had been carried out at the initiative of the applicant company.

Finally, there was no public interest in Ms R’s statements about the alleged rape of the two winners of beauty contests. Ms R had at the time of the interview no relation whatsoever with the public relations agency implicated in these events and the applicant company could, moreover, not trust Ms R to be informed about the background of the events at issue.

Enforcement proceedings against Ms R are currently pending.

B.  Relevant domestic law

Section 111 of the Criminal Code (Strafgesetzbuch) reads as follows:

 “1. As it may be perceived by a third party, anyone who makes an accusation against 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 (...)

A media offence (Medieninhaltsdelikt) is defined as “[an] act entailing liability to a judicial penalty, committed through the content of a publication medium, consisting in a communication or performance aimed at a relatively large number of persons” (Section 1 (12) of the Media Act.

Specific measures under the Media Act in case of a media offence are the publication of a judgment (Section 34) and the joint and several liability of the media owner (Section 35), which provides that a judgment concerning an offence under the Media Act shall include the joint and several liability of the owner and publisher of the concerned newspaper for the imposed fine and the costs of the proceedings including the publication costs of the judgment.

COMPLAINT

The applicant company complained under Article 10 of the Convention about its joint and several liability under Section 35 of the Media Act regardless of its compliance with journalistic diligence.

THE LAW

The applicant company complained that the Austrian courts’ decision finding it jointly and severally liable for the reimbursement of legal costs and a fine imposed on Ms R, pursuant to Section 35 of the Media Act, was in breach of Article 10 of the Convention. 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 accepted that the above measures constituted an interference with the applicant company’s rights under Article 10 § 1 of the Convention. They argued, however, that the interference was prescribed by law, namely by Section 35 of the Media Act, and pursued the legitimate aim of protecting effectively the reputation or rights of others. Further, it was proportionate to the aim pursued, as the publisher had objectively caused the spreading of the defamatory statements to a wider public. According to the Government, the provision at issue was part of an overall concept under the Austrian Media Act concerning duties and responsibilities of media owners resulting from the connection between the liability of media owners for defamation offences committed in their medium, on the one hand, and, on the other, from the duty to publish the court’s decision (Section 34) and the right to make a counter-statement (Section 13).

The Government also endorsed the reasoning of the Court of Appeal, laying down the arguments of shared responsibility of the media owner irrespective of the question of guilt, and carefully weighing it against the protection of the victim of a media offence. Without such shared financial responsibility, a victim, who had no influence on the issue of what and whose statements were published in the medium, would run the risk of not recovering the procedural costs after winning a case. Also, a victim’s right to protection of their honour would be impaired if, for economic considerations, he/she had to renounce the enforcement of the right to private prosecution because the incriminated statement was made by a destitute author. In the present case, the applicant company had been free to report on the two private prosecutors and their experiences in Monaco. Neither was the author who had written up the article held responsible under criminal law nor was the applicant company sentenced to pay damages. Considering the financial benefit it had achieved from the publication of the impugned statement with the eye-catching title and that the applicant company’s newspaper had the highest circulation in Austria, the measures corresponded to a “pressing social need” and constituted the least severe means to require media owners to take over some responsibility for media offences.

The applicant company contested the necessity of the interference. It pointed out that it did not deny its liability for media offences as such, but was limiting its complaint to the specific circumstances under Section 35 of the Media, which provided liability merely on account of the publication of a defamatory quotation by a third person regardless of any negligence on the part of the publisher. The applicant company further disputed the Government’s argument that the joint and several liability served the protection of the victim’s interests. Since the fine imposed on the defamer had to be paid to the State, it rather served the interests of the latter. In addition, the right to sue not only the alleged defamer but also the media owner entailed the risk of doubling the costs in case of loss of the lawsuit by the private prosecutor.

The Court considers, in the light of the parties’ submissions, that the application 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 the application 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 prejudging the merits of the  case.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

KRONE VERLAGS GMBH & CO KG v. AUSTRIA DECISION


KRONE VERLAGS GMBH & CO KG v. AUSTRIA DECISION