(Application no. 35841/02)
7 December 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Österreichischer Rundfunk v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 16 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“For years G. K. [full name] was known as the head of the Austrian neo-Nazi scene. But it was only after the strengthening of the Prohibition Act in 1992 that he was charged and sentenced to eleven years' imprisonment. Many other members of the VAPO were put behind bars along with him, among them H.-J. S.[full name] – who has also recently been released. K.[family name], now aged 41, made the headlines even while in prison in Krems, for instance at the first letter bomb trial. His release today, however, took place without much ado. Waiting journalists saw nothing but his belongings packed in boxes.”
The Court of Appeal confirmed the Commercial Court's assessment that the publication of S.'s picture had violated his legitimate interests within the meaning of Section 78 of the Copyright Act read in conjunction with Section 7a of the Media Act. Like the Commercial Court it stressed in particular that S.'s picture had been broadcast in the context of a report on the release of another person, K., and found that S. had an evident interest not to have his picture published in that context even if his own release dating some weeks back had also been mentioned. Even taking into account that S. had a certain degree of notoriety, his advancement within the meaning of Section 7a of the Media Act had been hampered disproportionately by the new publication of a picture taken at his trial.
In the subsequent main proceedings, the Vienna Commercial Court gave judgment on 31 December 2000. It ordered the applicant to refrain from publishing S.'s picture without his consent if it was accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or he had been released on parole. In its reasoning it repeated the arguments which had been developed in the preliminary injunction proceedings.
II. RELEVANT DOMESTIC LAW
A. Regulations concerning the ORF and broadcasting
“2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.”
24. Section 20 regulates the appointment of the Foundation Council. It consists of 35 members who are appointed as follows: six by the Federal Government upon proposals of the political parties represented in the National Assembly (Nationalrat), nine by the Länder, nine by the Federal Government, six by the Audience Council and five by the Central Works Council (Zentralbetriebsrat). Pursuant to Section 21 § 1, the Foundation Council is in charge of monitoring the management and of appointing the Director General.
B. The Copyright Act
“(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...”
C. The Media Act
“(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 the legitimate interests of that person are thereby harmed 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 14,535 euros; additionally, Section 6(1), second sentence, shall apply.
(2) The legitimate interests of the victim shall in any event be harmed 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 disproportionately prejudice the victim's advancement.
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. The parties' submissions
2. The Court's assessment
“It follows from the above-mentioned decisions and judgment that the category of 'governmental organisation' includes legal entities which participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities.”
48. The Court notes at the outset that the parties' submissions refer to the legal situation as described in the 2001 Act on the Austrian Broadcasting, which had entered into force on 1 January 2002 before the final decision in the present case was given and the application lodged. It follows that the question of the ORF's locus standi is to be assessed in the light of the provisions contained in the 2001 Act.
1. The parties' submissions
58. Even if Mr S. enjoyed certain notoriety, the courts had rightly found that his interest not to have his picture broadcast many years after his trial prevailed over the applicant's interest to use that picture for purely illustrative purposes. This was all the more so, since Mr S. had been released a few weeks earlier and was thus just beginning to re-integrate into society. He therefore had an important interest not to have his picture shown again in the context of criminal acts the penalty of which he had already served. In any case, the applicant remained free to report about the events at issue without showing Mr S.'s picture. In sum, the interference with the applicant's right to freedom of expression was proportionate.
2. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,711.63 (six thousand seven hundred eleven euros and sixty-three cents) in respect of pecuniary damage and EUR 17,147.33 (seventeen thousand one hundred forty-seven euros and thirty-three cents) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis