(Application no. 21277/05)
4 June 2009
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 Standard Verlags GmbH v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 14 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“If the stories circulating between the outlying district of Döbling and the city centre are to be believed, there is only one topic of conversation at the moment among the so called upper crust of Viennese society: the marriage of the departing presidential couple Thomas Klestil and Margot Klestil-Löffler [bold print in the original]. Rumour has it that not only is he about to leave office, but she is about to leave him. The latter claim has of course set tongues wagging furiously in bourgeois – and not-so-bourgeois – circles. People here like nothing better than to be able to express outrage about one of their own.
In addition to the allegedly less-than-blissful domestic situation on the Hohe Warte [the Federal President's residence], there has been persistent gossip recently about the supposedly close ties between the First Lady, who is her husband's junior by 22 years, and other political figures. Head of the FPÖ parliamentary group Herbert Scheibner [bold print in the original], for instance, is reported to be close to her (Scheibner has accompanied the presidential couple on a number of foreign trips). Ms Löffler is also said to be well acquainted with the husband of the Canadian ambassador (unsurprisingly, given her post as head of the American department of the Foreign Affairs Ministry).
The fact that the President's wife took a few days off recently to organise the move from the official residence to the couple's newly renovated home in Hietzing fuelled further speculation. So much so, in fact, that Klestil – never squeamish about putting his emotions on display – had the following pre-emptive statement published in his information bulletin, News [an Austrian weekly]: 'Rumours of a separation are nothing but idle gossip' he said. He added: As of 8 July we will be embarking on a new phase of our life together. Any assertions to the contrary are untrue.
Be that as it may, the people are concerned for the well-being of their President. Apparently, the public information desk of the President's Office has recently had more callers than ever before enquiring about the state of the President's marriage. And more than a few of the callers made their enquiries in the ultra-refined tones of Schönbrunn.”
A. The proceedings brought by Mr Klestil and Mrs Klestil-Löffler
B. The proceedings brought by Mr Scheibner
1. Proceedings under the Media Act
2. Proceedings under the Civil Code
II. RELEVANT DOMESTIC LAW
“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such 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. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
“(1) If the strictly personal sphere of an individual's life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ...
(2) The right referred to in paragraph 1 above shall not apply where:
(i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies;
(ii) the statements published are true and are directly related to public life;
(iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or
(iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.”
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 proceedings under the Civil Code
2. The proceedings under the Media Act
1. The parties' submissions
2. The Court's assessment
“42. ... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
The adjective 'necessary', within the meaning of Article 10 § 2, implies the existence of a 'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a 'restriction' is reconcilable with freedom of expression as protected by Article 10.
The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'.
43. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. In particular, it has held that although the press must not overstep certain bounds, for example in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). The national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59). ...”
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 4 June 2009, 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 dissenting opinion of Judge Jebens, joined by Judge Spielmann is annexed to this judgment.
DISSENTING OPINION OF JUDGE JEBENS, JOINED BY JUDGE SPIELMANN
1. I respectfully disagree with the majority's reasoning and conclusion in this case. In my opinion, the domestic courts' decision to order the applicant company to pay compensation to the claimants was not supported by “relevant and sufficient reasons”. Therefore, in my view, the interference with the applicant company's right to freedom of expression was not “necessary in a democratic society”, as required by Article 10 para 2.
2. The domestic courts' decisions were based on section 7 of the Media Act, in that the courts held that Der Standard had reported on the strictly personal sphere of the claimants' lives in a manner which was likely to undermine them in the public. The impugned article was interpreted as alleging that Mrs Klestil-Löffler intended to divorce, and that she had close contacts with two men. The latter implied, according to the courts' expressed opinion, that Mrs Klestil-Löffler had committed no less than double adultery and that Mr Klestil was put in the position of a deceived husband. In dismissing the applicant company's argument that the article was related to public life, the courts distinguished between a politician's alleged marital problems and his state of health, because in their view only the latter could have a bearing on his public functions.
3. I am not convinced by the argument that the article in question did not contribute to any issue of public interest. There is in my opinion some strength in the applicant company's assertion that the article: “A society rumour” (“Ein bürgerliches Gerücht”) intended in the first place to criticise the attitude of the so-called upper crust of Viennese society, which had nothing better to do than spread rumours about the Federal President's marriage. While the article did not concern a political debate, it can nevertheless be said to have contributed to an issue of general interest, namely certain attitudes of society towards the presidential couple (see, mutatis mutandis, Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 6266/03, § 25, 22 February 2007, which concerned a satirical article on society's attitudes towards a sports star). Thus, it is questionable whether at all the impugned article related to the personal sphere of the presidential couple.
4. However, even if one accepts the domestic courts' analysis, that the article spread rumours about the presidential couple's private life, the state of the marriage of the Federal President can in my view not be regarded as a topic of no public interest. Being in the position of head of state, it is a matter of fact that many people are interested in the president's private life, though admittedly for various reasons, spanning from concern about the president's well-being to mere curiosity. Moreover, the fact that the presidential couple had kept the public informed about the first applicant's divorce and his remarriage to the second applicant indicates that the claimants themselves were aware of the public interest in such matters. In these circumstances it is important that the Court does not take a paternalistic view, and try to decide for people what the true meaning of public interest is. In my view, there can be no doubt that the impugned article concerned a matter which was of legitimate interest among many people, and notably not the everyday life of a person who has not sought publicity (see, a contrario, Von Hannover, cited above, §§ 62 and 64).
5. In that context the question whether in fact rumours concerning the presidential couple's marriage were circulated at the time was of some relevance (see, mutatis mutandis, Tammer, cited above, § 68). It appears from the article that Mr Klestil himself had made a statement in the periodical News, in which he apparently commented on the rumours of a possible divorce, calling them completely unfounded. However, because the domestic courts had found that there was no direct link with the public life within the meaning of section 7 of the Media Act, the proof of truth in respect of the existence of the rumours reported was not available to the applicant company.
6. Furthermore, although the impugned article was placed in the domestic politics section, the heading “Gossip mongering” and the title “A society rumour” already made it clear that it was not to be taken at face value. The text itself did not pretend to relate to any established facts. It reported, in a somewhat humorous way, on rumours about the Federal President's marriage, and without using any insulting or abusive language (see, a contrario, Tammer, cited above, § 67). While it did not take a stance on the rumours concerning a possible break-up of the Federal President's marriage, it distanced itself from allegations that Ms Klestil-Löffler had “close relationships” with two other men, by explaining that there were professional reasons for her being well acquainted with the two men concerned which should arouse no suspicion whatever.
7. Bearing in mind the Court's supervisory function, I find it rather far-fetched to read the passage above as meaning that Ms Klestil-Löffler had adulterous relationships with two other men. At least, though it appears that the text is open to different interpretations, the domestic courts failed to give convincing reasons why they judged the applicant company on the basis of the most offensive one.
8. In sum, I consider that the impugned text remained within the limits of acceptable comment in a democratic society and that the domestic courts transgressed their margin of appreciation when interfering with the applicant company's right of freedom of expression. I therefore conclude that there has been a violation of Article 10.