CASE OF KRONE VERLAGS GMBH & CO KG v. AUSTRIA (No. 4)
No violation of Art. 10
David Thór Björgvinsson
8. The applicant company, a limited liability company with its registered office in Vienna, is the owner of the daily newspaper Neue Kronenzeitung. 9. In its issue of 9 May 1997 the applicant company published a one-page article about the alleged harassment and rape of two winners of beauty contests, Ms O and Ms S, during a representation mission in Monte Carlo. The article headed “It's your own fault girls...” and subtitled “Raped and harassed in Monte Carlo: Two beauty winners bring heavy charges” started with the quotation of Ms R, the daughter of the former manager of the Austrian public relations agency organising these contests and moderator of such events, saying that “The prince cannot rape, he is very ill. We [Ms R and her father] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident.” The article indicated that Ms R was the daughter of “Miss-maker R from Linz” and noted this was the “first official comment” on the above scandal. It then mentioned that two persons had been arrested on suspicion of procuration, described the details of the alleged incident and cited from a memorandum of Ms O and Ms S's lawyer. This memorandum referred to the statement made by a bodyguard of the prince who had allegedly said: “It's your own fault girls...” The article concluded with further statements made by Ms R asserting inter alia that the public relations agency of her father had not arranged the representation mission at issue. 10. Ms R had made her statements during a telephone interview when contacted by a journalist of the applicant company. 11. Thereupon, Ms O and Ms S opened private prosecution for defamation against Ms R. 12. On 3 October 2000 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), having heard the private prosecutors, Ms R, the applicant company and a number of witnesses, convicted Ms R of defamation in a printed medium under Section 111 § 2 of the Criminal Code (Strafgesetzbuch) on account of the statement “The prince cannot rape, he is very ill. We [Ms R and her father] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident.”, imposed a fine of approximately EUR 1,000 on her and ordered her to pay the costs of the proceedings. It noted that the offence was a media offence (Medieninhaltsdelikt), which could only be committed through publication in the applicant company's newspaper, and found the applicant company jointly and severally liable (Solidarhaftung) for the fine and the costs pursuant to section 35 of the Media Act (Mediengesetz). 13. In its plea of nullity against this judgment the applicant company complained about its joint and several liability under section 35 of the Media Act. It submitted in particular that the court should have interpreted this provision in conformity with Article 10 of the Convention, which prescribed joint and several liability only for failure of compliance with journalistic diligence. The article in question was written in an objective manner, reporting about the conflicting versions of the incident in Monte Carlo, and correctly quoted Ms R's statement without taking sides. 14. On 2 April 2001 the Vienna Court of Appeal (Oberlandesgericht), partly allowing Ms R's appeal, suspended the fine for a three-year probationary period. For the rest, it dismissed the applicant company's plea and confirmed the Regional Court's judgment. It held that the publisher's liability under section 35 of the Media Act was linked to a media offence, which could be committed not only by an employee of a media company but also by a third person. The commission of such an offence fell within the sphere of risk of a publisher who printed a defamatory statement in its newspaper. Its subsequent liability was based on considerations of causality and did not imply any finding of guilt. The court found that the legislator's choice in favour of the joint and several liability of the publisher reflected the balance struck between the interests involved, namely the interest of the media to exercise the right to freedom of expression, on the one hand, and, on the other, that of the person desirous of protecting his/her reputation, in favour of the interest of the defamed victim to secure financially the proceedings instituted to obtain legal redress. The publisher's strict liability was in line with its obligation to publish the judgment in its newspaper. 15. Subsequently Ms O and Ms S requested the applicant company to pay the legal costs of the defamation proceedings. Having paid, the applicant company filed a claim against Ms R and requested reimbursement of ATS 105,480 (EUR 7,665.53). 16. On 9 September 2002 the Favoriten District Court (Bezirksgericht) partly granted the applicant company's claim and ordered Ms R to pay the applicant company 50 % of the costs of the defamation proceedings. On 25 March 2003 the Vienna Regional Court confirmed this decision. 17. On 16 October 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant company's appeal. It noted that section 35 of the Media Act was not meant to disburden a defamer. The applicant company had paid another person's debt for which it was jointly and severally liable and was, in principle, entitled to recover under Article 1358 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) the full amount of the sum paid. 18. However, the special internal relationship (Innenverhältnis) between the applicant company and Ms R stood against full reimbursement, as Ms R had to be considered as an assistant of the applicant company (Medienmitarbeiter) in the broadest sense of the term. The court noted in this regard that the applicant company had used Ms R's statements for its own economic interests. Ms R could only commit the offence via the applicant company which had published the impugned statements. Furthermore, Ms R had acted free of charge and the interview had been carried out on the initiative of the applicant company. When correlating these factors with the guilt of Ms R, the splitting of the liability between the applicant company and Ms R was acceptable. 19. The court finally did not find it necessary to examine whether the applicant company could have claimed full reimbursement if section 6 (2) (4) of the Media Act was applicable to its case. It noted in this regard that the requirements under section 6 (2) (4) were not met as there was no predominant public interest in Ms R's statements about the alleged rape of the two winners of beauty contests. Ms R had at the time of the interview no relation whatsoever with the public relations agency implicated in these events and the applicant company could, moreover, not trust Ms R to be informed about the background of the events at issue. 20. Article 111 of the Criminal Code (Strafgesetzbuch) reads as follows: “1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature 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. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true." 21. A media offence (Medieninhaltsdelikt) is defined as “[an] act entailing liability to a judicial penalty, committed through the content of a publication medium, consisting in a communication or performance aimed at a relatively large number of persons” (section 1 (12) of the Media Act (Mediengesetz)). Specific measures under the Media Act in case of a media offence are the publication of the judgment or a counter-statement (ss 12 and 34) and the joint and several liability of the media owner (section 35). 22. Section 35 of the Media Act, at the time of the events, read as follows: “Liability 35 (1) In criminal judgments concerning media offences committed through the content of a publication it must be stated that owners of periodical media bear joint and several liability together with the convicted person for the fine imposed and the procedural costs incurred, including the costs for the publication of the judgment. (2) If, after the judgment had been pronounced in which such liability is found to exist ... the owner of the medium changes, the new owner is jointly and severally liable together with the former owner. (3) Imprisonment in default ... can only take place if the fine could not be collected from the media owner.” 23. Section 6 of the Media Act, at the time of the events, read as follows: “6 (1) If in a medium the presence of the factual elements of the offence[s] of defamation [....] is established, the person concerned has against the owner of the medium a claim for compensation of the prejudice suffered. ..... (2) There is no claim under (1) in case of .... 4. a truthful reproduction of the statement of a third person if there was a predominant public interest in the knowledge of the cited statement.” 24. Article 1358 of the Civil Code (Allgemeines bürgerliches Gesetzbuch) provides that a person who has paid another person's debt for which she/he is liable may claim reimbursement from the debtor. According to the writings on the subject this claim may be limited or even fail in case of a special internal relationship (Innenverhältnis) between these persons.