FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76918/01 
by VERLAGSGRUPPE NEWS GMBH 
against Austria

The European Court of Human Rights (First Section), sitting on 8 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr K. Hajiyev, judges, 
 Mr K. Herndl, ad hoc judge
and  Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 23 October 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, Verlagsgruppe News GmbH, is the owner and publisher of the weekly magazine News and has its registered seat in Vienna. It is represented before the Court by Lansky, Ganzger & Partners, a company of lawyers practising in Vienna. The respondent 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

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

1. Background

In June 2000 the Vienna City Counsel for Cultural Affairs (Kulturstadtrat), Mr Marboe, authorised the performance of Mr  Schlingensief’s “Container Action” during the Vienna International Festival (Wiener Festwochen). The staging took place in a container where actors figured as asylum seekers in Austria who were successively voted out for expulsion by the public. This container action met severe criticism by the public, inter alia, by members of the Austrian Freedom Party (FPÖ).

On 30 June 2000 the newspaper Kurier published an open letter to Mr Marboe written by the Austrian artist André Heller, in which he thanked and congratulated Mr Marboe for having allowed Mr Schlingensief’s performance. One passage of the open letter read as follows:

"(...) It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. (...)

(German)

(...) Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. (...)”

Subsequently the FPÖ politicians quoted in this letter, except for Mr Mölzer, filed private prosecution proceedings for defamation against Mr Heller, which they withdrew later on.

On 7 September 2000 the applicant company published an article on page 46 of its issue no. 36/00 with the heading “Action against André Heller” (“Klage gegen André Heller”) and subtitled “FPÖ-magnificos sue the critical artist André Heller. They are not being ‘spiritually depraved’ they allege” (“FPÖ-Granden klagen den kritischen Künstler André Heller. Sie seien “seelenhygiensich” nicht “heruntergekommen”, behaupten sie”)

The article, referring shortly to the context in which the above mentioned passage had been written, reported about the private prosecution proceedings filed by the FPÖ politicians against Mr Heller. The impugned passage was quoted in italics between quotation marks, followed by “end of quotation” put in brackets. The article continued to explain that “Böhmdorfer and Co” had not accepted this dishonouring and had mandated the former law-firm of the Minister of Justice, Mr Böhmdorfer, to file “peppered” law-suits. The next passage was headed by the word “dastardly” (niederträchtig), written in bold and between quotation marks, and cited extracts of the law-suit’s wording namely that the allegations made by Mr Heller were “untrue” and that the “unsubstantiated reproach” that Böhmdorfer & Co were “dastardly” amounted to “a classical defamation within the meaning of the Penal Code”, which came also true for the designation as “spiritually depraved political upstarts”. Mr Böhmdorfer’s former partner in the law firm had claimed “adequate punishment” of the offender André Heller.

The quotations from the law suit were put in quotation marks and written in italics. The author of the article next speculated about the outcome of the proceedings, assuming that the first instance court would acquit Mr Heller, as an artist should in principle have the right to sharp criticism, whereas the second instance court, presided by judge E. Maurer who, in the author’s view, was known for being FPÖ-friendly, would probably overturn this judgment. The article finally made allusions to eventual political motivations behind the law-suits.

2. Proceedings for forfeiture

Mr Westenthaler, one of the FPÖ politicians concerned, filed a request for forfeiture of the applicant company’s issue no. 36/00 of 7 September 2000.

On 9 October 2000 the St. Pölten Regional Court (Landesgericht), after having held a hearing, granted this request, pursuant to Section 33 § 2 of the Media Act and ordered the applicant company to pay the costs of the proceedings.

The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff without providing any factual information on the background, in particular why the plaintiff would be “spiritually depraved” or “dastardly”. The article referred to the “Schlingensief-Container”, and “the acrimonious resistance by the Kronenzeitung, the unleashed Vienna regional branch of the FPÖ and the Minister of Justice Dieter Böhmdorfer threatening with the Prosecutor General’s Office”. The plaintiff was not mentioned as cause for the criticism lodged by Mr Heller. The fact that the article had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under S. 33 of the Media Act. In the light of Article 10 of the Convention, the court nevertheless expressed doubts as to the constitutionality of S. 33 of the Media Act as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings. Thus, in the court’s view, reporting about pending defamation proceedings would be rendered illegal.

The applicant company appealed, arguing that the forfeiture infringed its right to freedom of expression and to impart information under Article 10 of the Convention.

On 4 April 2001 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court’s decision in essence. The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting. The court referred in this regard namely to the repeated hints to Mr Böhmdorfer, the allusions to the political motivations of the law-suits and the passage concerning the outcome of the defamation proceedings before the Court of Appeal, which in particular, expressed that an artist should have the right to sharp criticism. The court further noted that the passage at issue had to be assessed in the light of the article as a whole. In this regard, the court found that the reporting style used was typical for News, namely the use of special layout, highlighting certain words in bold or italics and adding pictures etc., which aimed at influencing the reader unconsciously. The first part of the article, including the passage at issue, might still be regarded as objective reporting when being assessed isolated. Furthermore, however, the subtitle of the subsequent passage, namely the word “dastardly” written in bold, caught the reader’s eye and focused his mind in an unambiguous direction, incriminating the plaintiff. Even though the subsequent passage merely dealt with the contents of the law-suits, it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance. The court concluded that the article had not limited itself in objective citation. Further, when balancing the interests involved, i.e., the right to freedom of expression of the applicant company and of the public to receive the information on the one hand, and the interest of the plaintiff not to be insulted, on the other, the court found in favour of the latter. It noted that even accepting that there was a public interest in the subject matter at issue, the allegation against the plaintiff, namely that he had a dastardly character without having provided any factual basis for this assertion, defamed the plaintiff and was worthless information for public debate. Therefore, it exceeded the limits of lawful criticism under Article 10 of the Convention. Thus, the interference with the applicant company’s right to freedom of expression, namely the forfeiture of the above issue, was necessary and also proportionate to the aim pursued.

Finally, the Court of Appeal did not share the Regional Court’s concern as regards a possible unconstitutionality of Section 33 of the Media Act. The court noted that, in any way, the criteria set up under Article 10 of the Convention had to be considered when assessing whether or not a statement concerned established an offence.

This decision was served on the applicant company’s lawyer on 26 April 2001.

B.  Relevant domestic law

A specific sanction provided for by the Media Act is forfeiture (Einziehung) of the publication concerned (Section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (Section 33 § 1).

If prosecution or conviction of any person for a criminal offence is not possible, forfeiture can also be ordered in separate so-called "objective" proceedings for the suppression of a publication, as provided for under Section 33 § 2 of the Media Act, by virtue of which:

"Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or a private prosecutor if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment ..."

COMPLAINT

The applicant company complained under Article 10 of the Convention that the Austrian courts’ decision ordering the forfeiture of its issue no. 36/00 of 7 September 2000 infringed its right to freedom of expression.

THE LAW

The applicant company complained under Article 10 of the Convention that the Austrian courts’ decision ordering the forfeiture of one of its issues infringed 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’s submissions follow in essence the argumentation of the second instance court. Referring to case-law of the Court of Appeal they asserted that the correct quotation of an insult of one person by another person was protected by Article 10 of the Convention and did not justify forfeiture. In the present case, however, the applicant company had not reported about the pending defamation proceedings in a neutral way but had identified itself with the content of the quoted statements. The Government referred in this regard to the Court of Appeal’s findings as regards the structure and style of the article and, furthermore, to the article’s subtitle which wording in their opinion called the rejection of the reproach of being “spiritually depraved” into question. The forfeiture was also proportionate. Most of the issues of the weekly magazine had, in any way, already been published and the applicant company had not sufficiently substantiated the alleged damage resulting from the forfeiture.

The applicant company contested the Government’s arguments and argued that the structure and wording of the article at issue were neutral. The Government and the domestic courts had interpreted the article at issue and the applicant company’s possibility of justifying the quotation of the impugned statements narrowly and in breach with Article 10 of the Convention. The wording of S. 33 of the Media Act was not in conformity with the requirements of Article 10 of the Convention as it did not provide for protection of a correct quotation. The measure at issue constituted a punishment which nature remained unchanged irrespective of the severity of its consequences. It had suffered material damage.

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.

Søren Nielsen Christos Rozakis 
 Registrar President

VERLAGSGRUPPE NEWS GMBH v. AUSTRIA DECISION


VERLAGSGRUPPE NEWS GMBH v. AUSTRIA DECISION