CASE OF ROTHE v. AUSTRIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. At the material time the applicant was the deputy principal of the St Pölten seminary, where future Roman Catholic priests are trained. In addition, he was private secretary to the bishop of the St Pölten diocese, Bishop Krenn. He resigned from his post as deputy principal in July 2004 and is currently living in Munich. 6. In the issue of the weekly news magazine Profil of 5 July 2004 an article was published on searches carried out by police in the St Pölten seminary. 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 of the seminary, 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. In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch), with the sub-heading “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.” 8. The article stated that the applicant and the principal of the seminary had had sexual relations with seminarians, but clarified 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 two photographs of the applicant, one on which he was about to embrace a seminarian, Mr K., and another one on which he and Mr K. were about to kiss each other. On this photograph the applicant’s eyes are closed and his mouth is half open. The photographs had been taken by one of the seminarians at a Christmas party in the applicant’s private apartment on 24 December 2003. In the article the applicant was identified by name while the seminarian’s identities were not disclosed. Likewise, on the published photographs, the applicant’s face was visible while that of the seminarian was blurred. The article quoted the applicant as saying that the photographs could be interpreted in different ways and that, at the Christmas party in question, all the participants had embraced each other in a friendly manner. 9. On 6 August 2004, the applicant initiated proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News GmbH, the publisher of Profil, in respect of the article published on 12 July 2004. Relying on sections 6 and 7 of the said Act, he requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photographs 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 ...” 10. The publisher of Profil replied that the content of the article was true. The company also argued that in the light of the Roman Catholic Church’s position condemning homosexuality, and the fact that the applicant was responsible for the training of future priests in the seminary, the public had an interest in knowing about the situation at the seminary. Moreover, the applicant was the private secretary of Bishop Krenn, who had repeatedly and publicly condemned homosexuality as being a sin and an aberration. Consequently, there was a connection with public life. The article was thus lawful by virtue of the right to freedom of expression guaranteed by Article 10 of the Convention. 11. 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 the applicant’s request for compensation. 12. The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photographs 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 photographs showed not merely a kiss on the cheek but a French kiss. The sexual nature of the kiss was visible from the fact that the applicant had his eyes closed and his mouth open with his tongue visible. Since the article had also stated that previous rumours about sexual coercion of seminarians by their superiors had not been confirmed, it was made clear that the two men had had a consensual relationship. 13. Giving a detailed assessment of various witness statements, the Regional Court found it established that the applicant had had a homosexual relationship with a seminarian, K., in which he had openly engaged at the priests’ seminary. One witness had stated, for instance, that the two men were wearing rings with each other’s names engraved on them together with the date of the beginning of their relationship. Moreover, one of the published photographs showed the applicant exchanging a French kiss with the seminarian K. The photograph had been taken in the applicant’s apartment, which was placed at his disposal by the diocese, during a Christmas party attended by a number of seminarians. The statement by the applicant quoted in the article, according to which the photographs could be interpreted in different ways, would lead the reader to conclude that the photographs had not been manipulated before publication. The Regional Court thus held that the publisher had succeeded in proving that the facts contained in the article were in essence true. 14. A request by the applicant to obtain the opinion of an expert in photographic analysis was rejected, as expert opinions were only to be taken if the resolution of a question of fact required expert knowledge which the court did not possess. Where the judge was able to assess the evidence on the basis of his or her own knowledge, no expert opinion was required. The Regional Court noted that the applicant had not alleged that the photograph had been manipulated. It could therefore be assessed without the help of an expert. 15. Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in knowing what was going on within the Church. The public also had an interest in 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. The applicant, as the deputy principal of the seminary, was a public figure in that capacity. Even though the impugned pictures 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 publisher had proved that the reported facts were essentially true. Thus, the applicant’s claim for compensation had to be dismissed. 16. The applicant lodged an appeal on points of law and fact with the Vienna Court of Appeal (Oberlandesgericht). The Court of Appeal, after holding a hearing, dismissed the appeal in a judgment of 28 June 2006. 17. The Court of Appeal upheld the judgment of the Regional Court, holding that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true. Regarding the applicant’s complaint that the publisher had not proved that there had been a homosexual relationship between him and a seminarian, the Court of Appeal found that the photographs of the two men hugging and kissing, together with the evidence from a witness who stated that he had seen them repeatedly exchanging French kisses at the Christmas party, was sufficient to prove that such a relationship had existed. As to the complaint that the first-instance court had refused to obtain an opinion from an expert in photographic analysis, the Court of Appeal found that the judge had rightly held that she could interpret the photographs for herself. Furthermore, the finding that the applicant and the seminarian K. had had a homosexual relationship was based not only on the photographs but first and foremost on a witness statement. The court further held that, in reporting on photographic evidence of seminarians in “kinky situations”, the publisher 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 photographs of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group who publicly spoke out against homosexuality and denounced homosexual contacts as sinful. The Court of Appeal went on to state as follows: “The appellant argues that the substantive law was also incorrectly applied ... because the court found that the published material was connected with ‘public life’. In his view, the public interest in occurrences within an institution did not warrant a report which identified individuals, particularly when the report dealt with their strictly personal sphere and the individuals concerned had not been in the public eye. He had merely been deputy principal of the St Pölten seminary, a purely internal function within the Church which had no external dimension; accordingly, there had been no grounds for any interference with the intimate sphere of his private life. The court is not convinced by this argument. 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, as the persons in charge of a training college for future priests, have a public dimension. 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, as a clergyman, as deputy head of a seminary and as a close adviser and secretary to the bishop, 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. Furthermore, the applicant was widely involved in public relations work not just through the training of priests but also through his role as secretary and legal adviser to the bishop; this serves as further justification for lending greater weight to the report identifying him than to his interest in preserving his anonymity, and for holding that there was a direct connection with public life. ...” 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. The judgment was served on the applicant’s counsel on 13 July 2006. 19. 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 provides 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 concerns the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ...subsection 2(2)(a) ...; the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.” 20. Section 7 of the Media Act provides 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 for the damage sustained from the media proprietor (publisher). ... (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) ...” 21. 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.” 22. 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.” 23. 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 claim a retraction and the publication thereof ...” 24. 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).