(Application no. 10520/02)
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,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
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
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Copyright Act
“(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 persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
B. 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 legitimate interests of that person are thereby injured 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) Legitimate interests of the victim shall in any event be injured 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 (Vergehen) or may disproportionately prejudice the victim's advancement. ...”
“(1) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty, or as the offender and not merely a suspect, the victim shall have a claim in damages against the owner of the medium (publisher) for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6 (1), second sentence, shall apply. ...”
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. ...
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
(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 1,719.89 (one thousand seven hundred nineteen euros and eighty-nine cents) in respect of pecuniary damage and EUR 4,363.64 (four thousand three hundred sixty-three euros and sixty-four cents) for 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 dissenting opinion of Mr Herndl is annexed to this judgment.
DISSENTING OPINION OF JUDGE HERNDL
1. Introductory remark
The present case is illustrative of the intellectual problems with which the Court is faced when it is called upon to exercise the delicate task of balancing the protection of private life (Article 8 of the Convention) against freedom of expression (Article 10). The actual issue with which the Court was faced in this case was whether it was legitimate or not to publish photos of an Austrian industrialist, Mr G., in the framework of a newspaper article reporting on pending investigations against him concerning suspected tax evasion, as well as on a murder attempt which had taken place earlier. The questions the Court had to answer was exclusively whether the prohibition imposed by the Austrian Supreme Court on the newspaper's use of photos of Mr G (which identified him clearly) to accompany the relevant report (the content of which was uncontested) constituted a violation of Article 10, or whether that prohibition was necessary in order to protect the individual's private life (Article 8).
In the Von Hannover case the Court stated that “anyone, even if they are known to the general public, must be able to enjoy a legitimate expectation of protection of, and respect for, their private life (Von Hannover v. Germany, no. 59320/00, § 69, ECHR 2004 VI). On the other hand, the Court has forcefully endorsed, in numerous judgments, the idea that the general public has a right to be properly informed – a right which is indeed essential in a democratic society. That right, covered by Article 10, may extend to aspects of the private life of public figures, particularly where politicians are concerned (see Editions Plon v. France, no. 58148/00, ECHR 2004 IV) and may include the publication of photographs of the person concerned (see Von Hannover, cited above, § 59). In that connection the decisive factor in balancing the protection of private life against freedom of expression must lie “in the contribution that the published photos ... make to a debate of general interest (see Von Hannover, cited above, § 76).
2. Was there a debate of general interest and could the photos make a contribution thereto?
I do not share the majority's view that the publication of several photos of Mr G. made any contribution to the “general debate” which might arise (or have arisen) as a consequence of the newspaper's reporting on the fact that Mr G. was suspected of evading taxes. As the whole issue was in fact a non-issue, the photos could not possibly have “contributed” to any public debate, and could not readily be regarded as furthering the public interest in
the issue of a possible tax evasion as reported in the newspaper. The publication of the photos would rather seem to be a gratuitous intrusion into a person's private life.
A side issue on which the judgment places some emphasis, however, is the confidentiality of the tax evasion investigations (see paragraphs 41 and 42). Unlike the published information at the heart of the Fressoz and Roire case (see Fressoz and Roire v. France [GC], no. 29183/95, § 53, ECHR 1999 I) the details and facts on which the newspaper reported in the present case, were not in the public domain and could not have been obtained except through a breach of secrecy. This is probably why that argument carried weight in the opinion of the Austrian Supreme Court.
3. Is Mr G. a “public figure”?
Admittedly it is not easy to answer that question. The majority accept that Mr G. is a “public figure”. This is indeed one of their principal arguments. In fact, Mr G. is the manager of a rather well-known company producing pistols. Does this profession really make him a “public figure”? He is known to be a rather shy individual, shunning publicity. As a person he is not known to the public at large. His picture (until the publication of the article by NEWS) had only been printed in specialised arms-manufacturing magazines. In the Austrian court files (in all three instances) he was continually described as an “industrialist” (Industrieller). The present judgment however has promoted him from “managing director of a well-known enterprise producing pistols” (see paragraph 8) to a “business magnate who owns and manages one of the country's most prestigious enterprises” (see paragraph 36), and for that reason concludes that “by his very position in society [he is] a public figure”. In point of fact however Mr G. seems to be quite the opposite of a “public figure”, as public figures, most of all politicians, must somehow be actively involved in what is commonly called “public affairs”, whereas Mr G. seemingly is not (see also the critique by the Court of attempts to describe a person as such as a “figure of contemporary society “par excellence” in Von Hannover, cited above, § 72). Finally, it would be fallacious to argue that as a consequence of a reference in a particular newspaper article Mr G. automatically became, and now is, a “public figure”.
In my view, as far as the publication of his photo is concerned, Mr G. was entitled to the protection of Article 8 of the Convention. The present judgment would seem to extend freedom of expression (Article 10 of the Convention) beyond its natural scope.