CASE OF STANDARD VERLAGSGESELLSCHAFT MBH v. AUSTRIA
No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer
6. The applicant company, a limited liability company based in Vienna, owns and publishes the daily newspaper Der Standard and the online news portal derstandard.at. 7. The Carinthian Regional Hospital Operating Company (Landeskrankenanstalten-Betriebsgesellschaft – hereinafter “the KABEG”) is a public-law institution (Anstalt öffentlichen Rechts) which operates five hospitals in Carinthia previously owned by the Region of Carinthia (Land Kärnten). 8. The KABEG is governed and represented by the board of management (Vorstand) which consists of at least one person and is appointed and supervised by the supervisory board (Aufsichtsrat). The supervisory board consists of three members of the Regional Government, one person who is appointed by the Regional Government and two representatives of the employees of the KABEG. The chairperson of the supervisory board is appointed by the Regional Government. 9. In 2011 I.M. was the member of the board of management in charge of human resources. K.S. was the chairperson of the supervisory board and leader of the parliamentary group (Fraktionsführer) of the Freedom Party of Carinthia (Freiheitliche Partei in Kärnten) in the Carinthian Regional Parliament (Landtag). His brother, U.S., was Deputy Governor of the Region of Carinthia. 10. Because of financial problems, rehiring (Wiedereinstellung) of highlevel managers and accusations of tortious interference on the part of politicians in the recruitment process, management errors and corruption within the KABEG, a public debate arose in 2010. On 28 October 2010 the medical director of Klagenfurt Regional Hospital (Landeskrankenhaus), who was in charge at that time, criticised I.M. in a confidential employees’ meeting of the medical doctors of the hospital. Only a few hours later the medical director was dismissed without notice. 11. On 25 November 2011 on the internet news portal derstandard.at and on 26 November 2011 in the daily newspaper Der Standard the following article was published: “Spying accusation against KABEG board of management ... The [KABEG] board of management ..., [I.M.], is under heavy pressure. According to the minutes of a meeting disclosed on Friday, she is supposed to have ordered the spying on a confidential employees’ meeting [Betriebsversammlung] for doctors of Klagenfurt Regional Hospital herself. These minutes were drafted after the employees’ meeting on 28 October 2010 in the course of a subsequent meeting in the office of the board of management and they state: ‘[I.M.] explains that she has, as a precaution, sent an informant, who wrote up a transcript [Wortprotokoll].’ ‘Stasi methods’ Prominent victim of this informant was the medical director, [M.A.], who had accused the KABEG management of using ‘Stasi methods’ against insubordinate doctors. M.A. was dismissed without notice immediately after the employees’ meeting. The informant was a trainee lawyer under [I.M.]’s lawyer. [I.M] always claimed that she had not been aware of this operation, that the KABEG lawyer had acted on his own volition. [He] took the blame and therefore had to explain himself before the bar association. K.S. ([Freedom Party of Carinthia]), chairperson of the supervisory board, who also put pressure on journalists in respect of critical reports on the KABEG, is supposed to be the spiritus rector of the spying operation. The now disclosed minutes (which are at the disposal of Der Standard) cast doubts on [I.M.]’s version ...” 12. On 10 January 2012 K.S., referring to the statement, that he was supposed to be the spiritus rector of the spying operation, initiated private prosecution proceedings for defamation under the Media Act (Mediengesetz) against the applicant company. He claimed compensation and demanded publication of the judgment, arguing that the statement had been a statement of fact, lacked any factual basis and was untrue. 13. The applicant company argued that the statement was a critical but permissible value judgment and had had a factual basis: K.S. had cultivated a friendship with I.M. and had supported her in the ongoing public debate; moreover, he had been associated with other spying accusations and had even announced in public that he would investigate and spy on politically unpopular individuals in order to get information to discredit them in public. The article did not allege that K.S. had personally initiated or ordered that a spy be sent to the employees’ meeting; however, by regularly applying and publicly announcing such practices he had created a climate and environment where such unfair methods were anticipated as “normal” and commonplace. 14. On 21 March 2012 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) rejected K.S.’s claims under the Media Act as inadmissible, reasoning that the term spiritus rector was neither defamatory nor mocking, nor did it allege specific conduct. Being called a spiritus rector meant being seen as a spiritual or ideological guide (geistiger oder weltanschaulicher Führer), which, especially for politicians, could not be seen as a negative quality and only suggested that others felt inspired by this person. 15. On 18 April 2012, following a prior complaint lodged by K.S., the Vienna Court of Appeal (Oberlandesgericht) quashed the Regional Criminal Court’s decision of 21 March 2012 and ordered it to initiate proceedings under the Media Act against the applicant company. It held that, taking into account the contents of the whole article, the statement suggested that K.S. had been the “spin doctor” (Ideengeber) of the spying operation. Based on this interpretation, the article would qualify as defamatory and originate a claim under the Media Act. It was thus required to examine the factual basis of the article. 16. In the subsequent proceedings before the Regional Criminal Court the applicant company explicitly declared that it would not provide evidence as to the truth (Wahrheitsbeweis) of K.S. having acted as a spin doctor or the like. It maintained its position that the statement was a value judgment. 17. On 15 May 2012 the Vienna Regional Criminal Court ordered the applicant company, under Section 6 of the Media Act, to pay 3,000 euros (EUR) (EUR 1,500 for each publication of the article) in compensation to K.S. on account of defamation, and to publish the judgment. Assuming that the statement was to be understood in the way set out in the Court of Appeal’s judgment of 18 April 2012, and noting that the applicant company had not provided evidence as to the truth of the allegation, it found that the article and statement qualified as defamation within the meaning of Article 111 § 1 and 2 of the Criminal Code (Strafgesetzbuch). 18. On 26 September 2012 the Vienna Court of Appeal dismissed the applicant company’s appeal against this decision. It held that describing someone as the spiritus rector of a negatively connoted spying operation had left no doubt for the readers addressed that the suggestion had been that this person had been the initiator and spin doctor of this operation. The statement implied a “specific and sufficiently concrete” (spezifisch und hinreichend konkretisiert) accusation of conduct and thus qualified as a statement of fact, as to the truth of which the applicant company had failed to provide evidence. As regards the applicant company’s complaint about the amount of compensation granted, the Court of Appeal held that it did not even amount to 10% of the maximum compensation permitted by law, and was not excessive in relation to the circulation of the newspaper and the online news portal. 19. That decision was served on the applicant company’s counsel on 24 October 2012. 20. The applicant company subsequently lodged an application for renewal of the criminal proceedings (Erneuerung des Strafverfahrens) under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof), complaining under Article 10 of the Convention of a violation of its right to freedom of expression. 21. On 26 June 2013 the Supreme Court rejected the application. It stated that the Court of Appeal’s considerations as to the qualification of the statement as a statement of fact did not raise concerns, and held that such statements of fact, which had not been proven to be true and were thus defamatory, were not protected by Article 10. It concluded that the interference with the applicant company’s right to freedom of expression had been prescribed by law, had pursued the legitimate aim of protecting the reputation of others and had been necessary in the circumstances of the case, in particular taking into account the low amount of compensation granted. 22. On 10 January 2012 K.S. also lodged an injunction suit under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant company, requesting that the latter be ordered to refrain from alleging or disseminating that K.S. had been or was supposed to have been the spiritus rector of a spying operation on a confidential employees’ meeting for doctors of Klagenfurt Regional Hospital. 23. On 5 March 2012 the applicant company requested that the proceedings be suspended until the termination of the proceedings under the Media Act (see paragraphs 12 et seq. above), arguing that the assessment of the factual elements in those proceedings, which would presumably lead to a rejection of K.S.’s application, would have a binding effect on the civil proceedings. 24. On 19 March 2012, during a hearing, the Vienna Commercial Court (Handelsgericht) suspended the proceedings until the termination of the proceedings under the Media Act, holding that they should only be continued at one party’s request. 25. At K.S.’s request of 1 October 2012, the Commercial Court resumed the proceedings on an unspecified date. 26. On 19 November 2012 the Commercial Court granted the injunction, finding that the criminal conviction in the proceedings under the Media Act had binding effect on the injunction proceedings. 27. On 29 June 2013 the Court of Appeal dismissed the applicant company’s appeal against that decision. It confirmed that, in line with the Supreme Court’s case-law, the conviction in the proceedings under the Media Act was binding, both in relation to the established elements of facts and the legal assessment. In particular, a final conviction under section 6 of the Media Act establishing that a particular media content fulfilled the objective elements of defamation would determine – in a way that was binding and not revisable in the civil proceedings – that the audience understood the media content as defamatory. Referring to the Supreme Court’s case-law on the issue, the Court of Appeal did not grant leave to lodge an ordinary appeal on points of law (ordentliche Revision) with the Supreme Court. 28. The applicant company did not lodge an extraordinary appeal on points of law (außerordentliche Revision) with the Supreme Court.