CASE OF KRONE VERLAG GmbH & Co. KG (no. 2) v. AUSTRIA
Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Peer Lorenzen
9. The applicant company is the publisher of a newspaper (Neue Kronenzeitung) with its registered office in Vienna. 10. In July 1996 the Neue Kronenzeitung published several articles on a case of parents, Ms and Mr K. who had abused their daughter. In the articles it was alleged that they had homo-bisexual inclinations. Subsequently Ms K. filed a compensation claim under the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen) against the applicant company. 11. On 30 July 1996 the court ordered the applicant company under Section 8a § 5 of the Media Act to publish a notice concerning the institution of the proceedings. On 4 September 1996 this notice was published in the Neue Kronenzeitung. 12. On 5 and 10 September 1996 Ms K. filed enforcement requests (Durchsetzungsanträge) under Section 20 of the Media Act against the applicant company. Referring to Section 13 § 3 of the Media Act, requiring a notice of the same “publishing value” (Veröffentlichungswert) as the original message, she argued that the notice of 4 September 1996 was smaller than the articles of July 1996 and was, thus, not published in due form. 13. On 17 December 1996 the Regional Court dismissed Ms K.'s request. The court found that the notice of 4 September 1996, though somewhat smaller, had the same “attention value” (Auffälligkeitswert) and, thus, the same “publishing value” as the articles. 14. With the Vienna Court of Appeal's (Oberlandesgericht) decision of 14 July 1997 the compensation proceedings were finally determined. The court ordered the applicant company to pay ATS 115,000 in compensation to Ms K. for breach of the presumption of innocence in its reporting about Ms K. and to publish the sentence. The applicant company complied with these orders. 15. On 30 July 1997 the Court of Appeal, upon Ms K.'s appeal, quashed the Regional Court's decision of 17 December 1996 and ordered the applicant company to pay a coercive indemnity (Geldbuße) of ATS 24,000 to Ms K., namely ATS 4,000 for each issue of the newspaper between 5 and 10 September 1996. The court considered that, in one of the disputed articles, Ms K. had been defamed even in a subtitle, whereas the notice had no subtitle. Therefore the “publishing value” was diminished. 16. Following this decision, Ms K. filed further enforcement requests for the period of 11 September 1996 until 4 August 1997. 17. On 23 September 1997 the applicant company requested that Section 20 § 4 of the Media Act be applied by analogy. This provision allowed for an exemption from the imposition of coercive indemnity for the duration of appeal proceedings in case a first-instance court had imposed a coercive indemnity for an inappropriate publication of the notice - which, however, had been published in a manner close to the due form - and the respondent had appealed against this decision. The applicant company argued that after the first-instance court's decision in its favour, finding that the notice had the same publishing value, it had not been required to publish another notice. Therefore the above rule of exemption from imposition of coercive indemnity during the appeal proceedings applied even more in its case. The applicant company further requested that Section 20 § 3 of the Media Act - which, in cases of special circumstances, allows the authority to stop or remit the imposition of coercive indemnity, once the notice has been published in due form - be applied for the period of 5 to 10 September 1996. 18. On 27 October 1997 the Regional Court ordered the applicant company to pay ATS 508,000 to Ms K., namely ATS 4,000 for each issue of the Neue Kronenzeitung between 20 September 1996 and 16 January 1997, the date of the introduction of Ms K.'s appeal against the decision of 17 December 1996. It dismissed the remainder of Ms K.'s request and the applicant company's request under Section 20 § 3 of the Media Act. The court found that Section 20 § 4 of the Media Act applied by analogy for the period of the appeal proceedings, therefore no coercive indemnity had to be paid from 17 January to 4 August 1997. 19. On 30 January 1998 the Vienna Court of Appeal, on both parties' appeal, quashed the Regional Court's decision in part. It decided that the applicant company had to pay a coercive indemnity of ATS 1,304,000 to Ms K., i.e. ATS 4,000 for each issue of the newspaper between 11 September 1996 and 4 August 1997. The court considered that the applicant company could not be exempted from paying the coercive indemnity for the period of the appeal proceedings, as the notice of 4 September 1996 had not come close to a notice in due form as required by Section 20 § 4 of the Media Act. 20. On 30 June 1998 the Procurator General's Office (Generalprokuratur) lodged a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court. It argued that the coercive indemnity under Section 20 of the Media Act was a coercive measure (Beugemittel). According to the Office, it was unreasonable to impose a coercive indemnity for the period after the first instance court's decision of 17 December 1996, since after that decision the applicant company was to be considered as having acted in good faith when it did not publish another notice. The coercive indemnity should therefore only be imposed for the period before 17 December 1996. 21. On 15 September 1998 the Supreme Court dismissed the plea of nullity. It argued that the question of good faith could not be resolved under Section 20 § 4 of the Media Act. Rather, the applicant company would have to commence indulgence proceedings (Nachsichtsverfahren) under Section 20 § 3 of the Media Act. In such proceedings, its particular situation after the first instance decision of 17 December 1996 could be taken into account. 22. In compensation proceedings under the Media Act, the court shall order the media company concerned to publish a short notice about the institution of the case, if it may be assumed that the compensation claim is well founded (Section 8a § 5). 23. This notice has to have the same “publishing value” (Veröffentlichungswert) as the publication to which it refers (Section 13 § 3). 24. If the notice was not published in due form, the plaintiff may request the court to impose a coercive indemnity on the respondent for each issue in which the notice could have been duly published, with sums of up to ATS 10,000 per issue (Section 20 § 1). 25. Once the notice has been duly published, the coercive indemnity may be stopped or remitted on request by the respondent in cases of special circumstances (in berücksichtigungswürdigen Fällen) (Section 20 § 3). 26. The parties have a right to appeal to the Court of Appeal against decisions imposing or remitting a coercive indemnity. In the event a coercive indemnity has been imposed for inappropriate publication of the notice and the respondent has appealed against this decision, no further coercive indemnity shall be imposed for the duration of the appeal proceedings, if the notice - whose proper publication is litigious - was published in a manner coming close to the due form (Section 20 § 4).