CASE OF STANDARD VERLAGSGESELLSCHAFT MBH (No.2) v. AUSTRIA
No violation of Art. 10
Christos Rozakis
6. The applicant company is the owner of the daily newspaper “Der Standard”. 7. The Region of Carinthia (Land Kärnten) is the majority shareholder of the Carinthian Electricity Corporation (Kärntner Elektrizitäts-Aktiengesellschaft - “the KELAG”). 8. On 16 June 1999 the KELAG invited all shareholders to the general meeting on 9 July 1999. One item on the agenda was the dismissal and re-election of the corporation's supervisory board (Aufsichtsrat). 9. For the meeting of the Carinthian Regional Government (Landesregierung) of 6 July 1999, Mr Pfeifenberger, the official dealing with financial matters at the material time, prepared a motion inviting the Regional Government to nominate specific persons to the corporation's supervisory board. 10. He retracted this motion before the meeting as, at the request of Mr Haider, Regional Governor (Landeshauptmann) of Carinthia, he had received a legal expert opinion issued by the expert Mr Q. According to this opinion, the Region of Carinthia had no right to nominate the members of the KELAG supervisory board as the members had to be elected. The representative of the Region of Carinthia could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by the Regional Government. 11. Mr Haider had further informed Mr Pfeifenberger that the Legal Department dealing with constitutional matters at the Carinthian Regional Government Office had approved this way of proceeding. Mr Haider further commissioned an expert opinion by the Legal Department. This opinion, issued on 2 August 1999, stated that an interpretation of the relevant provisions did not lead to an unequivocal result. 12. In the meantime, Mr Pfeifenberger – despite the protest of the socialist members of the Regional Government – gave authority to Mr Haider to represent the Region of Carinthia in the general meeting of the KELAG. Mr Haider subsequently represented the Region of Carinthia at the said general meeting on 9 July 1999 and exercised the voting right without having previously obtained a decision by the Regional Government. 13. On 14 July 1999, at the request of the Austrian Social Democratic Party (“the SPÖ”) Mr S, a professor of law of the Graz University, issued a further expert opinion of some seven pages concerning the question of “nomination of members to the KELAG's supervisory board by the Regional Governor of Carinthia”. 14. This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by the Regional Government was not in accordance with federal constitutional law, regional constitutional law and the Regional Government's Rules of Procedure. The opinion finally mentioned the possibility of impeachment of members of the Regional Government before the Constitutional Court by majority vote of the Regional Parliament (Landtag) under Article 142 of the Federal Constitution (Bundes-Verfassungsgesetz) for having culpably breached the law. The Constitutional Court's decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office. The possibility for the Constitutional Court to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under Article 142 § 2 lit d which did not provide for this alternative. 15. On 16 July 1999 the applicant company published an article on its front page of “Der Standard” which read as follows: “Haider has breached the Constitution According to an expert opinion commissioned by the SPÖ at the Graz University, the Regional Governor Jörg Haider has committed a 'breach of law' when appointing the supervisory board of the KELAG. His handling of the Regional Government's Rules of Procedure would be 'illicit, illegal and unconstitutional'. The ÖVP [Austrian People's Party] nevertheless does not want to support an impeachment. It invites Haider to correct the KELAG decisions concerning the personnel, which the FPÖ [Austrian Freedom Party] categorical refuses: 'We refuse to be blackmailed'.” 16. The article continued on page 8 under the same heading with the subtitle: “Expert opinion of professor in Graz accuses the Regional Governor of deliberate misguidance”. It stated as follows: “The Carinthian Regional Governor, Jörg Haider, by acting on his own when appointing the members of the KELAG supervisory board, has clearly committed a 'breach of the laws and the Constitution'. This is the conclusion reached by A.S [name in full], professor at the Graz University, in his expert opinion on constitutional matters which had been commissioned by the Carinthian SPÖ. Haider, by acting on his own authority, has violated the Carinthian Government's Rules of Procedure and has, thus, breached the law and the Constitution. The expert opinion mentions as an aggravating factor that Haider has 'deliberately mislead the Regional Government and ignored the Regional Constitution and the Regional Government's Rules of Procedure'. According to the expert opinion it is therefore possible to institute impeachment proceedings against Haider. If the Constitutional Court convicted Haider, he would be threatened with dismissal from office. The SPÖ leader Helmut Manzenreiter has now given Mr Haider an ultimatum: either the supervisory board should be appointed afresh by the Regional Government as a whole or there should be a tripartite agreement on transforming Kelag into a holding company. Otherwise, the SPÖ would institute impeachment proceedings against Mr Haider before the elections to the National Assembly. Mr Manzenreiter also called on the ÖVP not to 'cover up' Mr Haider's breach of the law. In the Regional Parliament the FPÖ reacted vehemently to the report. The leader of the FPÖ's parliamentary group, Martin Strutz, announced that a second opinion would be commissioned. Mr Haider himself could not hide his anxiety. He leaned back in a relaxed fashion only when the leader of the ÖVP's parliamentary group, Klaus Wutte, made clear that the ÖVP would not support his impeachment. Although the ÖVP intends to await the findings of an 'independent' expert opinion, Mr Wutte nonetheless hinted at the party's strategy: 'Not punishment but rectification of Haider's breach of the law.' In so doing, he both foiled his colleague Georg Wurmitzer and confirmed the viewpoint that there is a 'tacit coalition' between the ÖVP and the FPÖ.' 17. The article was followed by a further text in a small box headed “[The] Constitution stands above stock corporation law” (Verfassung steht über Aktienrecht). This text explained that Mr Pfeifenberger had prepared an act of Government (Regierungsakt) which Mr Haider had, however, retracted as being an “error”. The expert opinion had found that this conduct amounted to deliberate misguidance of the Regional Government. The article further stated that the expert A.S. did not accept Mr Haider's reference to stock corporation law. 18. On 29 July 1999 Mr Haider instituted proceedings for forfeiture (Einziehung) of the article and publication of the judgment under Section 33 of the Media Act (Mediengesetz) with the St. Pölten Regional Court (Landesgericht). 19. On 12 December 2000 the Regional Court found that the article at issue, by stating that Mr Haider had deliberately mislead the Regional Government and had acted in breach of the Carinthian Government's Rule of Procedure and the Regional Constitution, fulfilled the elements of the offence of defamation (üble Nachrede) under Article 111 of the Criminal Code (Strafgesetzbuch). It, therefore, ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections 33 and 34 of the Media Act. It further ordered the applicant company to pay the costs of Mr Haider's counsel. 20. At the trial the court heard the counsel of the applicant company, Mr Haider and Mr Pfeifenberger. It dismissed the applicant company's request to hear all other members of the Regional Government as being irrelevant for the proceedings at issue. 21. The court considered the statements that Mr Haider had breached the Constitution, had deliberately mislead the Regional Government and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof. The court noted that there was, in particular, nothing to indicate that Mr Haider had deliberately misled the Regional Government which, in itself, was a sufficient reason for the ordered forfeiture. The fact whether or not Mr Haider had acted in breach of the Constitution was a matter which had to be decided by the Constitutional Court. 22. The applicant company appealed against this judgment. It submitted inter alia that the statements at issue were value judgments, based on the facts established by the expert opinion of the professor of the Graz University, and contributed to the discussion of a question of public interest. 23. On 3 December 2001 the Vienna Court of Appeal (Oberlandesgericht), having the expert opinion of Mr S. before it as evidence, dismissed the applicant's appeal. It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts. The article at issue had, however, not simply reproduced the opinion given by the expert but had used it for an independent attack on Mr Haider's reputation. The court noted in this regard that the article had not placed the expert opinion in its context, namely that of a legal dispute, but had presented it as an irrevocable verdict on Mr Haider. The court referred in particular to the wording of the article's headings. It further noted that the article had not published any comment of Mr Haider and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore, the article contained statements which were not supported by the expert opinion, namely that Mr Haider had deliberately misled the Regional Government and the reference to the possible impeachment of Mr Haider. The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of the Regional Government who, in the opinion of the majority of the members of the Regional Parliament, had culpably breached the law. The court finally noted that the Regional Court's order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues. This judgment was served on the applicant company's counsel on 21 January 2002. 24. On 4 December 2001 Mr Haider brought injunction proceedings under Article 1330 of the Civil Code (Bürgerliches Gesetzbuch) against the applicant company. 25. On 19 June 2002 the Vienna Commercial Court (Handelsgericht), referring to the judgments of the courts in the proceedings under the Media Act, granted the injunction and ordered the applicant to revoke the statements that Mr Haider, by appointing the members of the KELAG supervisory board, had deliberately misled the Regional Government and had acted in breach of the Regional Government's rules of procedure and the Regional Constitution. It further ordered the applicant company to pay the costs of Mr Haider's counsel. 26. The court dismissed the applicant company's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law. The journalist had relied on press releases prepared by the Socialist Party which summarised the expert opinion incorrectly. The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion. 27. On 20 November 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company's appeal. This decision was served on the applicant company's counsel on 4 December 2002. 28. 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 Article 111 of the Criminal Code (Strafgesetzbuch), as follows: “1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such 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. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 29. Section 33 § 2 of the Media Act reads as follows: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims 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, has not been requested or such a request has been withdrawn. If no punishment can be imposed in case of the offender having proved the truth, the defence of truth shall also be available to the owner (publisher) of the media product in question being the interested party ...”. 30. Section 34 of the Media Act deals with the publication of a judgment (Urteilsveröffentlichung). It states inter alia that a criminal judgment concerning a media offence has, at the request of the prosecution, to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction. At the request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible. 31. Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim compensation. 2. The same applies if anyone is disseminating facts, which jeopardize another person's reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...”