CASE OF NEWS VERLAGS GmbH & Co. KG v. AUSTRIA
Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Elisabeth Palm
12. The applicant, a limited liability company with its seat in Tulln, is the owner and publisher of the magazine News. 13. In December 1993 a series of letter bombs was sent to politicians and other persons in the public eye in Austria. Some of the addressees were severely injured. 14. On 10 December 1993 B., a right-wing extremist, was arrested on suspicion of having been involved in the so-called letter-bomb campaign. He was taken into detention on remand. Preliminary investigations were instituted against him on suspicion of attempted murder and of having committed offences under the National Socialism Prohibition Act (Verbotsgesetz – “the Prohibition Act”). He was later charged with offences under the Prohibition Act and with having aided and abetted assault. 15. In December 1993 the applicant company published a special issue and later an article in one of the regular issues of its magazine News, dealing with the letter-bomb campaign, the activities of the extreme right and, in particular, the suspect B. The respective reports were illustrated with several pictures of B. The cover page of the special issue for instance showed a small picture of B., subtitled in big letters “The Mad World of Perpetrators”. Under the headline “Terror for the Führer” a full-page picture showed B. together with two other persons. According to the comments, this picture was taken in a courtroom, where B. stood up in protest when the verdict was pronounced against his “Führer”, the neo-Nazi leader G.K. Furthermore, it was stated that, when G.K. was sentenced to ten years' imprisonment, his companions, including B., swore vengeance. According to another comment on the same page, these companions who had been supposed to be harmless lunatics were now arrested as bomb terrorists. The cover page of the second issue carried the headline “Victims and Nazis” and showed a large picture of one of the victims and a smaller picture of B. and two others. The victim was quoted as saying: “I want to meet the perpetrators.” At the bottom of the page the words “Nazi scene uncovered” appeared. In the article, a further picture of B. and another suspect, R., was shown. According to the comment, it had been taken on the occasion of the trial of the neo-Nazi leader G.K. The comment went on to state that R. and B., who had both wished to succeed G.K., were now suspected of having dispatched the bombs. Moreover, a wedding picture of B. was published. The comment accompanying it stated that, according to the investigations of the police, B. and R. had probably collaborated in order to organise the letter-bomb campaign. In the article itself, B. was described as pathologically ambitious, one of the most brutal members of the neo-Nazi scene and the possible successor to the neo-Nazi leader G.K. 16. On 21 January 1994 B. brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company, requesting that the latter be prohibited from publishing his picture in connection with reports on any criminal proceedings against him. He also requested a preliminary injunction (einstweilige Verfügung) to that effect. 17. On 9 March 1994 the Vienna Commercial Court (Handelsgericht) dismissed B.'s application for a preliminary injunction. 18. The court observed that section 78 of the Copyright Act prohibited publishing a person's picture if the publication violated that person's legitimate interests. However, where criminal proceedings were conducted against the person concerned, that interest had to be weighed against the public interest in receiving information. As the present case related to very serious offences based on anti-democratic, subversive ideology, the publication of a suspect's picture was justified in principle. Further, the court found that it did not have to examine whether the accompanying comment violated B.'s right to respect for his private life as he had failed to indicate which passages of the articles at issue might go beyond the limits of acceptable reporting. 19. On 22 September 1994 the Vienna Court of Appeal (Oberlandesgericht), upon B.'s appeal, issued a preliminary injunction prohibiting the applicant company from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks. 20. The Court of Appeal pointed out that section 78 of the Copyright Act was directed against the abuse of pictures in public. Section 78 sought above all to prevent a person from being disparaged by the publication of a picture, or his private life being made public or his picture being used in a way giving rise to misinterpretation, or in a disparaging and degrading manner. Further, the court observed that section 78 of the said Act did not define the term “legitimate interests”, thus conferring discretion on the courts in order to enable them to take the particular circumstances of each case into account. It also required the courts to weigh the interest of the person concerned in the protection of his or her picture against the publisher's interest in conveying information. 21. The Court of Appeal went on to say that, in assessing whether a person's legitimate interests within the meaning of section 78 of the Copyright Act had been violated, not only the picture itself, but also the accompanying text had to be taken into account. Also, a person suspected of having committed an offence had a legitimate interest in not being denounced in public by the publication of a picture in connection with a disparaging text. In the present case, the contested publication constituted not only a gross insult, but also a serious violation of the presumption of innocence. Quoting some headlines and comments from the articles at issue, the Court of Appeal noted that the applicant company had called B. a “perpetrator” of the letter-bomb attacks, a “Nazi”, a “terrorist for the 'Führer'” and a companion of the neo-Nazi G.K. who had been sentenced to ten years' imprisonment. These gross violations of B.'s legitimate interests justified a prohibition on the publication of his picture in the context of the criminal proceedings which were at the time conducted against him. 22. Despite this line of reasoning, the judgment had the effect of prohibiting the publication of B.'s picture not only in connection with a text that was prejudicial but – even more restrictively – in connection with reports on the criminal proceedings against him irrespective of the accompanying text. 23. On 22 November 1994 the Supreme Court (Oberster Gerichtshof) rejected both parties' extraordinary appeals on points of law (außerordentlicher Revisionsrekurs), finding that they did not raise any important legal issues. As to the applicant company's appeal, it found that section 7a of the Media Act (Mediengesetz), to which the applicant company had referred in its submissions, did not lead to the result that a suspect's legitimate interests could not be violated by the publication of his picture. There was thus no contradiction with section 78 of the Copyright Act. Further, there were no clear indications in the present case that the public interest justified the publishing of B.'s picture. Thus, the appellate court's decision was not based on a gross misinterpretation of the law. 24. Supplementing his application of 21 January 1994, B. had in the meantime filed an alternative claim (Eventualbegehren), requesting that the applicant company be ordered to refrain from publishing his picture in connection with such statements as had been made in the articles at issue and which he listed in detail. 25. On 19 April 1995 the Vienna Commercial Court, in the main proceedings, granted B.'s alternative claim, ordering the applicant company to refrain from publishing B.'s picture where the publication was likely to violate B.'s legitimate interests, namely in connection with statements in which B. was referred to as the perpetrator of the letter-bomb attacks or as being involved in terror or letter-bomb attacks, or in connection with such statements – listed in detail – as had been made in the articles at issue. 26. The court found that the publication of B.'s picture together with the accompanying text constituted not only a gross insult, but also a serious violation of the presumption of innocence. These gross violations of B.'s legitimate interests justified a prohibition on publishing his picture in the context of the criminal proceedings against him, but only if he was referred to as the perpetrator of the offences or if otherwise the rules of objective reporting were violated. Having regard to the seriousness of the charges brought against B. and the notoriety of the victims, the public interest in B.'s appearance outweighed his interest in not having his picture published as long as such reports did not overstep the boundaries of objective journalism. Further, the court emphasised that it did not intend to sanction reporting (Wortberichterstattung) as such. It repeated that, when assessing a person's claim under section 78 of the Copyright Act, the text accompanying the pictures was of importance. It made a difference whether a person, along with the publication of his picture, was stigmatised as the perpetrator of a crime or whether an objective report on the criminal proceedings against him was given. 27. On 30 August 1995 the Vienna Court of Appeal dismissed the applicant company's appeal but granted B.'s appeal. It ordered the applicant company to refrain from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks. 28. The court recalled the reasons given in its decision of 22 September 1994 (see paragraphs 20-21 above) concluding once again that the publication of B.'s picture in the context of the accompanying comments had constituted a gross violation of his legitimate interests, which justified a prohibition on publishing his picture in the context of the criminal proceedings against him. It added that the onus was not upon B. to specify the statements which the applicant company had to refrain from publishing in connection with the pictures since, in general, new accusations were published in the course of the proceedings, and there was no interest in repeating the previous ones. Thus, the Commercial Court's judgment was worded too narrowly. 29. On 24 October 1995 the Supreme Court rejected the applicant company's extraordinary appeal on points of law. It found that the applicant company undoubtedly had a right to impart information about the proceedings conducted against B. However, the right to impart information had to be distinguished from the right to publish pictures of B., which had to be balanced against B.'s interest in the protection of his picture. Even the publication of a picture accompanied by a correct statement of facts, which violated neither section 7a nor section 7b of the Media Act, could infringe the legitimate interests of the person concerned. Finally, the Supreme Court, referring to Article 10 of the Convention, found that the applicant company's right to freedom of expression had not been violated, since it had not been prohibited from reporting on the proceedings, but only from publishing B.'s picture in that context. 30. In December 1995 a first-instance court acquitted B. of the charges of assault but convicted him of offences under the Prohibition Act. The criminal proceedings against B. received extensive news coverage. Contrary to the applicant company, other newspapers remained free to publish B.'s picture. 31. On 18 December 1995 the Vienna Court of Appeal, in proceedings brought by B. under section 7b of the Media Act, found that the applicant company had violated the presumption of innocence and ordered it to pay 50,000 Austrian schillings by way of compensation to B. The court found that in its articles of December 1993 the applicant company had referred to B. as the perpetrator of the “letter-bomb terror”. 32. The relevant provision of the Copyright Act 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 that they have died without having authorised or ordered publication, of a close relative would be injured. ...” This provision has been interpreted in the Supreme Court's case-law. In particular the Supreme Court found that in determining whether the publication of a person's picture violated his or her “legitimate interests” regard was to be had to the accompanying text. Where the publisher of the picture claimed that there was a public interest in its publication, the courts had to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court constantly held that there was no predominating public interest in the publication of the suspect's picture if it had no additional independent information value. The only effect was that the intensity of such reporting was increased by joining the suspect's picture and, thus, made his or her appearance known to the public at large (see for instance, MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33). 33. The relevant provisions of the Media Act read as follows: “(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who 1. has been the victim of an offence punishable by the courts, or 2. is suspected of having committed, or has been convicted of, a punishable offence, and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 200,000 schillings; additionally, section 6(1), second sentence, shall apply. (2) Legitimate interests of the victim shall in any event be injured if the publication 1. in the case of subsection (1)1 is such as to give rise to an interference with the victim's strictly private life or to his or her exposure, 2. in the case of subsection (1)2 relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim's advancement. ...” “(1) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty, or as the offender and not merely a suspect, the victim shall have a claim in damages against the owner of the medium (publisher) for the injury suffered. The award of damages shall not exceed 200,000 schillings; additionally, section 6(1), second sentence, shall apply. ...”