CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA
(Application no. 76918/01)
14 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 Verlagsgruppe News GmbH v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
Mr K. Herndl, ad hoc judge,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 23 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
“... It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. ...
... Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. ...”
“Lawsuit against André Heller
FPÖ grandees sue critical artist André Heller. They are not 'spiritually depraved', they maintain.
Böhmdorfer is suing Heller. He is not alone, though: Jörg Haider, Peter Westenthaler and Susanne Riess-Passer have all launched a powerful attack on André Heller with the assistance of the law firm Böhmdorfer-Gheneff Rechtsanwälte KEG.
The reason is that the artist André Heller, a critic of the Government, wrote an 'open letter' in the Kurier lavishing praise on the Vienna city councillor for cultural affairs, Peter Marboe (ÖVP). Shortly before this, however, Peter Marboe had allowed Schlingensief's provocative container to be installed outside the Vienna State Opera House as a spectacle for the International Festival – despite bitter opposition from the Kronen Zeitung, a furious Vienna FPÖ and the Minister of Justice, Dieter Böhmdorfer, who threatened prosecution.
André Heller wrote in the Kurier at the time: 'It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are' (end of quotation). Böhmdorfer & Co. will not stand for this humiliation. They have instructed Böhmdorfer-Gheneff KEG, with which the Minister of Justice severed ties in March, to file a peppery lawsuit against Mr Heller.
'Dastardly'. In the private lawsuit it was stated that the allegations made in Mr Heller's letter were 'untrue' and that the 'unsubstantiated accusation' that Böhmdorfer & Co. were “dastardly” amounted to 'what would appear to be an absolutely classic case of defamation within the meaning of the Criminal Code'. The same applied to the expression 'spiritually depraved political upstarts'.
Huberta Gheneff-Fürst, now the sole partner of the law firm to which the current Minister of Justice Mr Böhmdorfer still belonged six months ago, has called for André Heller to be given 'punishment commensurate with his guilt' as the person responsible for the deceitful smear.
Last stop Maurer. As has happened in a number of similar cases, André Heller could be acquitted of defamation at first instance, since an artist really should have the right to express strong criticism. But at final instance Judge Ernest Maurer, known to be FPÖ-friendly, could come into the frame. Ernest Maurer was appointed to the Austrian Broadcasting Corporation's board of governors by the FPÖ, and that creates at least an appearance of bias.
Suspicion. Even the President of the Judges' Association, Barbara Helige, is somewhat astonished at Ms Gheneff-Fürst, especially as the lawyer persists in retaining 'Böhmdorfer' in the law firm's name: 'If a former partner of the current Minister of Justice is stressing how important it is for Böhmdorfer's name to appear on the law firm's notepaper, the uninformed observer will suspect there is something political behind it.'
Above the article a photo showing Mr Westenthaler standing between Mr Haider and Mr Böhmdorfer was published.
B. Proceedings for forfeiture
II. RELEVANT DOMESTIC LAW
“1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour 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...”
“1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision...”
“Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn...”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
Article 10, as far as relevant, reads as follows:
“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. ...
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.”
A. The parties' submissions
B. The Court's assessment
II. 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 company, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 1,956.64 (one thousand nine hundred fifty six euros and sixty four cents) in respect of pecuniary damage;
(ii) EUR 5,411.69 (five thousand four hundred eleven euros and sixty nine 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 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following concurring opinions are annexed to this judgment:
(a) Concurring opinion of Mr Jebens;
(b) Concurring opion of Mr Herndl.
CONCURRING OPINION OF JUDGE JEBENS
I agree with the majority that the forfeiture of the 7 September 2000 issue of the weekly magazine News was in violation of Article 10 of the Convention. However, I do not fully share the majority's reasoning on two points. I will discuss this in the following.
First, the only justifiable reason for finding a violation of Article 10 in this case is, in my opinion, the fact that the applicant company had quoted the statement previously expressed by Mr Heller, in its reportage about a pending defamation case against him. This is so, because it transpires from the Court's case law that the privileged position of newspapers is based on “the contribution of the press to discussion of matters of public interest“ (Jersild v. Denmark, judgment of 23 September 1994, A 298, § 35). Therefore, if the objectionable statements in the article in the newspaper Kurier were not in themselves protected by Article 10, neither the fact that the magazine had not made them, but “assisted in their further dissemination by quoting them” nor the fact that the statements had “already been widely disseminated”, as argued by the majority in para 30, is in my opinion relevant with regard to Article 10. By emphasizing these factual elements, the majority goes beyond what in my opinion is necessary in order to protect the role of the press.
Second, with regard to the critical approach in the News' coverage of the defamation proceedings, I would like to make another clarification as to my own view. I agree with the majority that “the article remained within the limits of acceptable comment on court proceedings”, as argued in para 33. However, regard must in this respect be had to the nature of the statements. When evaluating the News' coverage of the defamation proceedings against Mr Heller, it is in my opinion relevant that the statements which were quoted in the article were negative value judgments, not false factual allegations. This is so, because it must be assumed that the newspaper's rather critical approach to the defamation proceedings did not create additional damage to the persons described, as opposite to the situation if the quoted statements had contained factual allegations. Distinguishing between different types of allegation in this respect is in my opinion fully consistent with the press' role of providing information, as described in the Thoma v. Luxembourg judgment, cited above, § 64.
CONCURRING OPINION OF JUDGE HERNDL
The purpose of this concurring opinion is to lay emphasis on two points.
At the time No. 36/2000 of NEWS was issued, the impugned statements had already been widely disseminated as another newspaper had printed Mr Heller's “open letter” several months earlier. Accordingly, and in line with the Court's established jurisprudence (see the leading case, i.e. Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p. 33 ss.; also the Weber v. Switzerland, judgment of 22 May 1990, Series A no. 177, p. 22: the incriminated relevant information had already become “public knowledge”), the reproduction of the impugned extracts of the “open letter” in the framework of an article published by NEWS cannot be regarded as a valid ground for the decisions of the Austrian courts as regards the forfeiture of issue no. 36/2000. There was indeed a violation of Article 10 of the Convention.