CASE OF VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
7. Vereinigung Bildender Künstler Wiener Secession is an association of artists with its seat in the Secession building in Vienna. The Secession, an independent gallery, is devoted entirely to exhibitions of contemporary art. One of the basic objectives of the association is to present current developments in Austrian and international art, and to cultivate an openness to experimentation. 8. Between 3 April and 21 June 1998 the applicant association held an exhibition on its premises. The exhibition, entitled “The century of artistic freedom” (“Das Jahrhundert künstlerischer Freiheit”), was intended as part of the celebrations of the association's 100th anniversary. Among the works to be shown was a painting entitled “Apocalypse”, which had been produced for the occasion by the Austrian painter Otto Mühl. The painting, measuring 450 cm by 360 cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Hermann Groer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr Meischberger, a former general secretary of the FPÖ until 1995, who at the time of the events was a member of the National Assembly (Nationalratsabgeordneter), a mandate he held until April 1999. Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched by two other FPÖ politicians and ejaculating on Mother Teresa. 9. The exhibition, for which admission was charged, was open to the public. 10. On 11 June 1998, while the exhibition was in progress, the Austrian newspaper Täglich Alles bristled at the above painting's portayal of “group sexual situations with Bishop Groer and Mother Teresa”. 11. On 12 June 1998 the painting was damaged by a visitor, who covered with red paint the part which showed, among others, Mr Meischberger. As a consequence of this incident the entire painted body of Mr Meischberger and part of his face were covered with red paint. 12. Several Austrian newspapers reported on this event and also published pictures of the painting. 13. On 22 June 1998 Mr Meischberger brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant association, seeking an injunction prohibiting it from exhibiting and publishing the painting. He further requested compensation in the amount of 20,000 Austrian schillings (ATS – 1,453.46 euros (EUR)). He argued that the painting, showing him in sexual positions with several persons, debased him and his political activities and made statements as to his allegedly loose sexual life (lotterhaftes Intimleben). The black eye-bars did not prevent him from being recognised, because he was shown together with two other FPÖ politicians. He remained recognisable even after the incident of 12 June 1998, which had further increased the publicity given to the painting. Furthermore, there was a danger of recurrence as after the present exhibition the painting was due to be shown at another exhibition in Prague. 14. On 6 August 1999 the Vienna Commercial Court (Handelsgericht) dismissed Mr Meischberger's action. It noted that it had initially been intended to show the exhibition in Prague, Bucharest and Luxembourg as well; now the intention was to close down the exhibition. The court further found that it could be ruled out that the painting had adversely affected the claimant or divulged information about his private life, as the painting, which resembled a comic strip (“comixartig”), obviously did not represent reality. However, a painting showing the claimant in such an intimate position could, regardless of its relation to reality, still have a degrading and personally debasing effect. In the present case, however, the right of the applicant association to freedom of artistic expression outweighed Mr Meischberger's personal interests. When balancing the latter's interests against the interests of the applicant association, the court had regard in particular to the fact that the exhibition was dedicated to the association's artistic spectrum over the last hundred years, which included the work of the Austrian painter Otto Mühl. It further noted that the painting showed numerous other persons, among them friends and benefactors of the painter, and also representatives of the FPÖ party, which had always strongly criticised Mr Mühl's work. 15. The painting in question could therefore be seen as a kind of counter-attack (Gegenschlag). In any event, Mr Meischberger's picture constituted only a rather small part of the painting and was therefore not striking. The court further added that there appeared to be no danger of recurrence (Wiederholungsgefahr) as the painting had been partly covered by red paint and Mr Meischberger was therefore no longer recognisable on it. 16. On 24 February 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held an oral hearing, granted an appeal on points of law and fact by Mr Meischberger, issued an injunction against the applicant association prohibiting it from continuing to display the painting at exhibitions, and ordered it to pay the costs incurred by Mr Meischberger in the proceedings and ATS 20,000 (EUR 1,453.46), plus 4% interest with effect from 8 July 1998, in compensation. It further allowed Mr Meischberger to publish extracts of its judgment in two Austrian newspapers. It noted that Mr Meischberger's picture was only partly covered by red paint, so that part of his face, the shape of his head and his hairstyle were still recognisable. The limits of artistic freedom were exceeded when the image of a person was substantially deformed by wholly imaginary elements without it being evident that the picture aimed at satire or any other form of exaggeration. The painting in the present case was not intended to be a parable or even an exaggerated criticism conveying a basic message, such as, for example, the statement that Mr Meischberger had disregarded sexual decency and morals. It therefore did not fall within the scope of Article 10 of the Convention, but in fact constituted a debasement of Mr Meischberger's public standing (Entwürdigung öffentlichen Ansehens). The applicant association could not justify the exhibition of the painting under the artistic freedom protected by Article 17a of the Basic Law (Staatsgrundsgesetz). There was, furthermore, nothing to indicate that the applicant association would abstain from exhibiting the painting in the future, so that there was a danger of recurrence. 17. On 18 July 2000 the Supreme Court (Oberster Gerichtshof) rejected an appeal by the applicant association as it did not concern a legal question of considerable interest. It noted that the Court of Appeal had not questioned the fact that the painting fell within the scope of protection provided by Article 17a of the Basic Law but, weighing the guarantee of artistic freedom enshrined in that provision against Mr Meischberger's personal rights as protected by section 78 of the Copyright Act, had considered that the latter prevailed over the former because a picture of Mr Meischberger had been used in a degrading and insulting manner. As to the question whether Mr Meischberger could still be recognised despite the painting being covered with red paint, the Court of Appeal had not contradicted the documents contained in the court file and there was therefore no need for a rectification. It ordered the applicant association to pay the costs of the proceedings. 18. That decision was served on the applicant association's counsel on 13 September 2000. 19. 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 portrayed persons or, in the event that they have died without having authorised or ordered publication, those of a close relative.” 20. Artistic freedom is guaranteed by Article 17a of the Basic Law (Staatsgrundgesetz), which provides: “There shall be freedom of artistic creation and of the publication and teaching of art.”