SCHÜSSEL v. AUSTRIA
Inadmissible
Ireneu Cabral Barreto
The applicant, Wolfgang Schüssel, is an Austrian national, who was born in 1945 and lives in Vienna. He is represented before the Court by Mr W. Suppan, a lawyer practising in Vienna. The facts of the case, as submitted by the applicant, may be summarised as follows. At the material time the applicant was Deputy Prime Minister of Austria in a coalition Government formed by the Austrian Social-democratic Party (Sozialdemokratische Partei Österreichs) and the applicant’s party, namely the Austrian Peoples’ Party (Österreichische Volkspartei). In the 1995 election campaign the applicant had been nominated by his party as candidate for the office of Prime Minister. In November 1995 the Austrian Social-democratic Party and the Group of Social-democratic Trade Unionists distributed stickers showing a picture of the applicant’s face half overlapped by the face of Mr Haider, the leader of the Austrian Freedom Party (Freiheitliche Partei Österreichs), headed by the following text: “The social security slashers and the education snatchers share a common face” (“Sozialabbau und Bildungsklau haben ein Gesicht”). On 21 November 1995 the applicant brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz). On 28 November 1995 the Vienna Commercial Court (Handelsgericht) granted the applicant’s request for a preliminary injunction prohibiting the defendants from publishing and disseminating the applicant’s picture, in the event that his legitimate interests were thereby injured, firstly, in that the accompanying text alleged that he was a “social security slasher” and an “education snatcher” or, secondly, in that his face was distorted by being overlapped with the face of a politician of an opposing party, that of Jörg Haider. In its reasoning, the Commercial Court noted that section 78 of the Copyright Act protected anyone against abuse of his or her picture in public. A person in the public eye, in particular one who had entered the public arena of his or her own motion, was not protected in this public capacity. The applicant had put himself at the centre of his party’s election campaign. As his party’s top candidate, he could be regarded as endorsing its positive statements and had to accept being the target of its opponents’ criticism. Thus, the use of his picture by political opponents was not in itself contrary to section 78 of the Copyright Act. However, while the applicant had to accept admissible criticism directed against the party represented by him, an infringement of his legitimate interests was conceivable regarding attacks on his privacy or personal disparagement which went beyond the limits of acceptable criticism. This consideration applied in particular where his picture was used in a distorted manner. In the present case, the applicant did not have to accept the distorted use of his picture “melted” with the picture of a political opponent. Further, the Commercial Court examined whether the publication of the applicant’s picture in the context of the impugned statement “The social security slashers and the education snatchers share a common face” was unlawful. It found that the combination of the applicant’s picture with disparaging expressions suggesting that he was insensitive to social needs and was stealing educational opportunities violated his legitimate interests. On 15 December 1995 the Vienna Commercial Court dismissed the objection (Widerspruch) of the defendants. On 18 October 1996 the Vienna Court of Appeal (Oberlandesgericht), upon the defendants’ appeal, confirmed the preliminary injunction order as to the prohibition to publish a distorted picture of the applicant, but lifted it as regards the prohibition to publish it accompanied by the incriminated text. The Court of Appeal confirmed that the applicant did not have to accept the publication of his distorted picture overlapped with the picture of a political opponent. However, as to the accompanying text, it found that the expressions “social security slashers” and “education snatchers”, though being blunt, were no more than the usual graphic wording applied in an election campaign. The average citizen would conclude that the applicant advocated reducing social assistance and making budgetary cuts in the education system. The statement could not be understood as to contain an allegation of theft within the meaning of the Criminal Code, nor did it suggest that the applicant was generally insensitive to social needs. On 28 January 1997 the Supreme Court, upon the defendants’ appeal on points of law, quashed the Appeal Court’s decision and dismissed the applicant’s request for a preliminary injunction. The Supreme Court observed that, when examining whether the publication of a picture violated legitimate interests within the meaning of section 78 of the Copyright Act, it had to be taken into account whether the person concerned was well-known. However, even where a well-known politician was concerned, there were limits to the admissible publication of his picture. Such limits applied where the publication intruded on a politician’s privacy, where his picture was distorted or where it was accompanied by a text which connected him with events with which he had nothing to do or attributed political convictions to him which he did not hold. The Supreme Court confirmed the appellate court’s view that section 78 of the Copyright Act did not prohibit the publication of the applicant’s picture in the context of the allegation that he was a social security slasher and an education snatcher. The impugned statement was - contrary to the applicant’s view - not a statement of fact but a value judgment. The dividing line between statements of fact and value judgments depended on the context in which the statement was made and the impression it conveyed. In general, the public would understand attributions of negative intentions to one politician by his political opponents as value judgments. Whether measures proposed in the interest of consolidating the budget were perceived as slashing social security or, on the contrary, as preserving a sound economic basis for the social security system, was indeed a value judgment. The Supreme Court went on to say that political debate and the shaping of public opinion was sometimes impossible without having recourse to graphic wording. It recalled that political debate was protected by the right to freedom of expression as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Referring to the case-law of the European Court of Human Rights, the Supreme Court recalled that the limits of acceptable criticism were wider for a politician than for a private individual. A politician inevitably and knowingly laid himself open to close scrutiny of his every word and deed by journalists, the public at large and his political opponents. Thus, as his party’s top candidate, the applicant had to accept that his political opponents used disparaging words to describe his political aims. As to the question of whether the publication of the applicant’s picture overlapping with Mr Haider’s was contrary to section 78 of the Copyright Act, the Supreme Court contested the appellate court’s view. It was clear to every onlooker that the faces of two leading politicians had been combined by way of photomontage. The picture showed the applicant as he had presented himself in the election campaign without making his features ugly or repulsive. The sticker simply conveyed the political message that the applicant advocated the same policy as Mr Haider on social security and education issues. This was the “common face” of the defendant’s two most important opponents. On the whole, this was an admissible political statement rather then a personal disparagement of the applicant. In the subsequent main proceedings, the Vienna Commercial Court held a hearing on 29 April 1997. The applicant’s counsel submitted that the sticker at issue suggested to the general public not only that the applicant’s future political intention was to reduce social security or educational opportunities but that he had already taken such measures. He requested that a member of the applicant’s party be heard as a witness. The court dismissed the request, finding that the matter was ready for decision. The Commercial Court, referring to the Supreme Court’s reasoning, dismissed the applicant’s request that the defendants be prohibited from publishing his picture in the event that his legitimate interests were thereby injured, firstly, in that the accompanying text alleged that he was a “social security slasher” and an “education snatcher” or, secondly, in that his face was distorted by being overlapped by the face of a politician of an opponent party, in particular Jörg Haider’s. On 18 September 1997 the Vienna Court of Appeal dismissed the applicant’s appeal. As to the applicant’s complaint that the witness requested by him had not been heard, the court found that the question of what impression was conveyed by the sticker at issue was a matter of legal assessment to be carried out by the court. On 24 February 1998 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the applicant’s submissions in the main proceedings did not raise any relevant new facts as compared to the preliminary injunction proceedings. Section 78 of the Copyright Act, insofar as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question, or in the event they have died without having authorised or ordered publication, of a close relative would be injured.”