CASE OF VERLAGSGRUPPE NEWS GMBH AND BOBI v. AUSTRIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The first applicant, Verlagsgruppe News GmbH, is a limited liability company established under Austrian law with its registered office in Vienna. It publishes the weekly news magazine Profil. The second applicant, Mr Emil Bobi, is a journalist and editor-inchief responsible for certain sections of the weekly news magazine Profil. He lives in Vienna. 6. In the issue of Profil of 5 July 2004 an article was published on searches carried out by police in the Roman Catholic seminary in St Pölten. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the principal (Regens) of the seminary, Mr Küchl, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents. 7. On 7 July 2004 the second applicant called Mr Küchl and said he had received photographs which showed the latter engaging in homosexual activities. Mr Küchl stated that this was impossible and that any such photographs could be interpreted in different ways. 8. In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.” 9. The article stated that Mr Küchl had had sexual relations with seminarians and that two of them had regularly spent weekends or longer periods with him at the Eisgarn monastery. It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well-known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained a photograph showing Mr Küchl with his left arm around one of the seminarians, holding the seminarian’s wrist with his left hand and with his right hand on the man’s crotch. This picture had been taken by one of the seminarians at a birthday party and Mr Küchl was shown looking into the camera, apparently aware that he was being photographed. In the article Mr Küchl was identified by name, while the seminarians’ identities were not disclosed. Likewise, in the published photograph, Mr. Küchl’s face was visible while that of the seminarian was blurred. The article was also accompanied by a statement from Mr Küchl saying that the photograph could be interpreted in different ways. 10. On 19 July 2004 the magazine again published the photograph and an article on recent events in the diocese in the wake of the child pornography scandal. The article also contained a letter from Mr Küchl to members of the parish in which he said that the photograph had been taken from an unfortunate angle (unglückliche Einstellung) and that he had never approached any seminarian in a sexual context. 11. On 6 August 2004 Mr Küchl initiated proceedings under the Media Act (Mediengesetz) against the applicant company in relation to the article published on 12 July 2004. Those proceedings are the subject of application no. 51151/06, Küchl v. Austria. They are summarised here, in so far as is necessary for the examination of the present case. 12. Relying on sections 6 and 7 of the said Act, Mr Küchl (“the claimant”) requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photograph and the impugned article, especially the following passages: “‘Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray’. ‘A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...’; ‘Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...’; and ‘In June of the previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’” 13. On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed Mr Küchl’s request for compensation. 14. The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts. It represented the applicant with his left arm around the seminarian and his hand on the man’s crotch. The article made clear that such contacts had been entered into without coercion. 15. Giving a detailed evaluation of the various witness statements, the Regional Court found it established that the applicant had had consensual homosexual relationships with several seminarians, one of whom had repeatedly spent weekends at Eisgarn monastery; this had led to an explicit instruction from Bishop Krenn prohibiting such visits by seminarians. Furthermore, the court found that the applicant had spent a holiday with a seminarian during which they shared an apartment in a hotel. It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “sacrament of marriage” on two seminarians. Moreover, the statements of the witnesses had confirmed that the published photograph had been taken in the applicant’s apartment at Eisgarn monastery during a birthday party for one of the seminarians. The Regional Court thus held that the facts contained in the article were in essence true. 16. Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church. The public also had an interest in knowing what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. Mr Küchl, as the head of the seminary, was a public figure in that capacity. Even though the impugned picture had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the newspaper publisher had proved that the reported facts were essentially true. Accordingly, Mr Küchl’s claim for compensation had to be dismissed. 17. The Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal in a judgment of 24 May 2006. It upheld the judgment of the Regional Court, ruling that the said court had not erred in fact or in law and had rightly held that the newspaper editor had managed to prove that the content of the article was true. Furthermore, the Court of Appeal held that, in reporting on photographic evidence of seminarians in “kinky situations”, the applicant company had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as a sinful. The Court of Appeal went on to state as follows: “The court cannot accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, particularly those in charge of a training college for future priests, are directly related to public life. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law. The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population...” 18. The Court of Appeal concluded that since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation. 19. On 9 July 2004, after publication of the first article, Mr Küchl brought proceedings against the applicant company and the second applicant before the Vienna Commercial Court (Handelsgericht). Relying on section 78 of the Copyright Act (Urheberrechtsgesetz), he asked the Commercial Court to order the applicant company and the second applicant to (i) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and (ii) refrain from publishing photographs of the claimant which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to his honour and reputation. 20. The claimant also requested the Commercial Court to issue an interim injunction prohibiting the applicant company and the second applicant from publishing the above-mentioned statements and pictures. 21. After publication of the second article in the issue of Profil of 12 July 2004, showing for the first time the photograph of the claimant with his hand on the seminarian’s crotch, the claimant notified the Commercial Court of the further statements contained in that article and of the fact that the photograph had been published. He repeated the requests made on 9 July 2004. 22. In so far as relevant in the context of the present case, the claimant’s request for an interim injunction was rejected by the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the Vienna Court of Appeal, which gave its decision on 18 June 2005. 23. In a decision of 15 December 2005 the Supreme Court varied the lower courts’ decisions, granting point (ii) of the claimant’s request for an interim injunction. The applicant company and the second applicant were thus prohibited from publishing photographs of the claimant, in particular in connection with allegations of unwanted homosexual advances involving abuse of authority which were damaging to the claimant’s honour and reputation. However, the Supreme Court dismissed point (i) of the claimant’s request, namely that the applicant company and the second applicant be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the claimant having homosexual contacts or appeared to show that he was homosexual. 24. The Supreme Court (Oberster Gerichtshof) held that even the publication of true statements was capable of interfering with a person’s right to privacy and thus might become unlawful. In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information. Referring to the Court’s case-law under Article 10 of the Convention, the Supreme Court noted the importance of freedom of the press, in particular where the latter reported on issues of general interest. In the present case, information about the homosexuality of officials of the Roman Catholic Church was an important issue and as such was often the subject of public attention and discussion. It was the media’s task to report and comment on actual cases. Thus, the claimant’s interest was outweighed by the applicants’ right to publish the statements, the truth of which was not in dispute. 25. As to the publication of the photograph, the Supreme Court held as follows: “1. The publication of images that would cause injury to legitimate interests is prohibited (section 78(1) of the Copyright Act). The injury must arise out of the actual publication of the image (RIS-Justiz RS0077782). However, not only the image itself must be assessed, but also the manner of its dissemination and the context in which it is set (RS0078077). The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377 with further references). 2. On the basis of these principles, the interests of the claimant in the present case should be considered worthy of protection, contrary to the Court of Appeal’s view. The accompanying text portrays the claimant in a negative light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to use the terminology of the German case-law) nor a ‘public figure’ (the term used in Austrian legal practice) whose appearance was already known to the general public before the picture was published (4 Ob 15/93). It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text, which is damaging to the honour of the person concerned (‘pillorying effect’). In such cases, therefore, publication of the picture can be justified only if, after the required weighing of interests, the interest of the publisher in publishing is found to prevail (RIS-Justiz RS0077767). However, that is not the case here. The protection of the intimate sphere of the claimant’s private life carries greater weight in this case than the public interest in being informed of the image, in contrast to the case already examined concerning the text of the article. Of course, there is some force to the Court of Appeal’s argument that publication was designed to some extent to ‘prove the claimant guilty’ after he had denied the accusations as ‘slander’, and thus to allow the public to make up its own mind on the basis of the photograph. In the Supreme Court’s view, however, this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant’s private life and providing documentary ‘evidence’ of the allegations denied by the claimant. It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by Article 8 of the ECHR. If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the Constitution, then this must also apply in principle to members of religious organisations and Church officials, even if the practice of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree. There is no overriding interest for the public at large to be informed of the claimant’s appearance and to identify him via publication of his photograph. Even when publication takes place in connection with a criminal offence, the principle of proportionality of the interference applies. Likewise, even a genuine need to inform must not go beyond what is strictly necessary, so that it cannot be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person (RIS-Justiz RS0077883). The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance, to warn the public about an escaped criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal. The interest in being informed can be sufficiently met without publication of an image, simply by reporting the facts and referring to the existence of a photograph (several photographs) as evidence.” 26. On 4 July 2006 Mr Küchl narrowed his previous claim to the publication of pictures, amended the wording of the injunction sought, and added a claim for damages. He thus requested the court to order the applicants to refrain from publishing photographs of him which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority, and/or of engaging in sexual antics or “kinky” situations with seminarians or similar allegations. 27. In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims. 28. Referring to the decisions in the proceedings under the Media Act and to the Supreme Court’s decision of 15 December 2005 in the interim injunction proceedings, the Commercial Court observed that the statements made in the various articles in Profil were true, namely that the claimant had had homosexual relationships with seminarians, including P., with whom he was shown in the impugned picture. However, it had to be assessed whether the publication of his picture in connection with those true facts had violated his legitimate interests. The claimant’s interest in the protection of his private life as guaranteed by Article 8 of the Convention had to be weighed against the freedom of the press to impart information as protected by Article 10. 29. The Commercial Court held that Article 10 of the Convention protected not only the freedom to impart information, but also the form in which such information was imparted. Thus, the publication of the photograph had been lawful, especially as the accompanying text was not capable of damaging the claimant’s honour or of having a pillorying effect. Quoting the courts’ decisions in the proceedings under the Media Act, the Commercial Court also held that, owing to the status of the Roman Catholic Church and its dignitaries in Austria, and its teachings that homosexuality was a sin and an aberration, the public had a right to be informed about the conduct of the principal of a seminary who was responsible for the education of future priests. In the present case, proportionality between the interests at stake had been maintained, as the photograph had not been published simply in order to satisfy the public’s interest in scandals, but had served to inform the public. 30. In a judgment of 13 December 2007 the Vienna Court of Appeal partly granted Mr Küchl’s appeal. Relying on section 78 of the Copyright Act, it prohibited the publication of photographs of the claimant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians, especially involving abuse of authority, and of engaging in sexual antics or “kinky” situations with seminarians or similar accusations. However, it dismissed the claim for compensation. 31. The Court of Appeal summarised the content of the articles published in Profil on 5, 12 and 19 July 2004 and the reasoning set forth by the Supreme Court in its decision of 15 December 2005 in the interim injunction proceedings. It went on to state as follows: “No factual circumstances came to light in the main proceedings which would cause the Supreme Court to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings. It was established that the photograph was taken in Eisgarn monastery at the birthday party of one of the seminarians, attended by the claimant and four or five students of the seminary. The party was held in a meeting room and a ‘reception room’ of the apartment made available to the claimant in his capacity as provost of the monastery. Protection of the private sphere encompasses all matters which, on the basis of their information content, are typically classified as private. This covers individuals in their home, family or other environment removed from the public gaze (Neukamm, Bildnisschutz in Europa, 118). The right to protection of one’s private sphere encompasses the spaces in which the individual can rest, relax or simply let go. This includes any premises from which the individual can exclude outsiders and escape the public gaze (Neukamm, loc. cit., 120). On that basis, there can be no doubt that the birthday party in the claimant’s apartment fell within the private sphere, despite the fact that it was attended by seminarians and took place (partly) in a ‘reception room’ in the claimant’s apartment. Neukamm, loc. cit., 213). Hence, it is beyond dispute that the photograph in question falls (exclusively) within the claimant’s private sphere. Furthermore, the Supreme Court previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned. The publication of pictures depicting private conduct is not justified on the grounds of the public’s interest in being informed (Neukamm, op. cit., 233, and ECHR judgment of 11.1.2000, application no. 31457/96 – News Verlag GmbH). This applies also to articles concerning private-life matters (Neukamm, op. cit., 235). If the publication of photographs serves the public’s interest in being informed, that interest must be weighed against the personality rights of the person depicted. As a general rule, the latter should prevail (Neukamm, op. cit., 236).” 32. The Court of Appeal also upheld the Commercial Court’s decision in so far as the latter had dismissed Mr Küchl’s claim for damages. It noted that damages under the Copyright Act were to be awarded only if the general requirements laid down in the Civil Code were met. In particular, it was necessary for the publisher to have acted culpably, with at least minor negligence. In the present case, the applicants had based their decision to publish the photograph on an arguable legal opinion. It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the claimant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding the view that the publication of the picture had an information value of its own, while the Supreme Court had overturned their decisions. In these circumstances, the applicants were entitled to believe that the publication of the picture was admissible, and they had therefore not acted culpably. 33. The claimant and the applicants lodged extraordinary appeals on points of law with the Supreme Court. 34. The Supreme Court rejected the extraordinary appeals in a judgment of 26 March 2009, holding that the prerequisite for it to deal with the case, namely a question of law which was of fundamental importance for the unity of the law, was not met. With regard to the applicants’ appeal it noted that it had already given detailed reasons in its decision of 15 December 2005 explaining why, as far as the publication of the photograph was concerned, the claimant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10 in the circumstances of the present case. The Vienna Court of Appeal had followed that reasoning in the main proceedings. 35. Finally, the Supreme Court dismissed the applicants’ argument that the courts’ decisions in the proceedings under sections 6 and 7 of the Media Act were binding on the courts in the present case. It held that a decision taken under sections 6 and 7 of the Media Act did not resolve a preliminary question (Vorfrage) in relation to the claim under section 78 of the Copyright Act. There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section 78 of the Copyright Act, while on the same facts dismissing a compensation claim under sections 6 and 7 of the Media Act. The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section 78 of the Copyright Act. 36. The judgment was served on the applicants on 30 April 2009. 37. Section 6 of the Media Act provides for the strict liability of the publisher, inter alia in cases of defamation. The victim can thus claim damages from the publisher. Section 6 reads as follows: “(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...” (2) The right referred to in paragraph 1 above shall not apply ... 2. in the case of defamation (a) [where] the statements published are true or ... (3) Where the publication concern the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ... subsection 2(2)(a) ...; in the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.” 38. Section 7 of the Media Act provides for a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. It reads as follows: “(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation from the media proprietor (publisher) for the damage sustained. ... (2) The right referred to in paragraph 1 above shall not apply where: (i) ... (ii) the statements published are true and are directly related to public life; (iii) ...” 39. For the purpose of Section 6 of the Media Act, “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads 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.” 40. Section 78 of the Copyright Act, in so far as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or, if they have died without having authorised or ordered publication, those of a close relative.” 41. Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation. (2) The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...” 42. The Court refers to this resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012).