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KRONE VERLAG GMBH v. AUSTRIA - 27306/07 [2012] ECHR 1046 (19 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/1046.html
Cite as:
[2012] ECHR 1046
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FIRST
SECTION
CASE OF KRONE VERLAG GMBH v. AUSTRIA
(Application
no. 27306/07)
JUDGMENT
STRASBOURG
19 June
2012
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 Krone Verlag GmbH
v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27306/07)
against the Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
Krone Verlag GmbH & Co. KG (“the applicant
company”), a limited liability company with its registered
office in Vienna, on 26 June 2007.
The
applicant company was represented by Ebert Huber Liebmann
Rechtsanwälte GmbH, a law firm based in Vienna. The Austrian
Government (“the Government”) were represented by their
Agent, Ambassador H. Tichy, Head of the International Law Department
at the Federal Ministry for European and International Affairs.
3. The
applicant company alleged that judgments under the Media Act ordering
them to pay damages had infringed their right to freedom of
expression under Article 10 of the Convention.
On
27 August 2009 the President of
the First Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant company, Krone Verlag GmbH & Co KG, is
the owner and publisher of the daily newspaper Kronen
Zeitung.
A. The background of the case
In 1999 E.R. and U.W., the parents of Christian W.,
dissolved their common household and concluded a provisional
agreement on the custody of Christian under which sole custody was
granted to E.R., while his brother stayed with U.W. On 13 February
2001 U.W. asked for custody to be withdrawn from E.R. and transferred
to him.
On
22 February 2001 E.R. and U.W. agreed that pending the outcome of an
expert report custody be provisionally transferred to U.W.
(vorläufige Obsorge) and that for the time being
Christian should live with U.W., his father.
It
appears that subsequently U.W. hindered contact between Christian and
E.R. and, in June 2002, moved to Sweden. Thereupon, by an
interlocutory decision (einstweilige Verfügung) of 26
July 2002, custody of Christian was transferred back to E.R.
U.W.
was ordered to hand Christian over to E.R. immediately or to take him
back to Austria before 5 August 2002. That order was confirmed on
appeal on 12 September 2002 and became final.
Thereupon
E.R. travelled to Sweden to have that decision enforced. U.W.
proposed to E.R. that they enter into an agreement on custody of
Christian, and E.R. also agreed to staying in Sweden. However, no
such agreement was finally reached. After E.R. had settled in Sweden
and found employment there, U.W., together with Christian, left
Sweden for Austria.
On
4 November 2002, pending the outcome of the custody proceedings,
custody was temporarily transferred to the Salzburg Youth Welfare
Office. On 23 December 2003 the court dismissed U.W.’s request
for custody to be withdrawn from E.R. and transferred to him. The
decision was declared immediately enforceable.
Subsequently,
various attempts to enforce that decision were undertaken. The
Austrian newspapers reported on these events because U.W. kept them
regularly informed and sought publicity.
The
first attempt at enforcement, on 23 December 2003, failed because
U.W. and Christian went into hiding. U.W. had informed the media of
this step in advance. Some time later they returned. In order to
enforce the custody decision the competent court scheduled a hearing
for 15 January 2004 in the course of which Christian was to
be handed over to E.R. U.W. failed to appear at the hearing.
Thereupon
the judge ordered that Christian be brought before the court by force
(zwangsweise Vorführung).
When
that decision had to be enforced by court officers Christian
barricaded himself in his elementary school and, since the police
officers who intervened decided not to use physical force on the
premises of the school, this attempt also failed. These events were
also widely covered by the media because U.W. had informed them in
advance.
After
further unsuccessful attempts the rural police (Gendarmerie)
were informed on 26 January 2004 that Christian was at his father’s
house. Court officers sent to the house noted, however, that
Christian was not in the house but, together with a babysitter, in a
car in front of it. The officers tried to take hold of Christian but
he cried and resisted. These scenes were again the subject of
widespread media coverage because they were observed and photographed
by several journalists, who had been informed and had hurried to the
spot.
In
order to establish whether Christian had suffered injuries during the
attempt to enforce the court order, U.W. took him to the Salzburg
hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W.
and Christian were separated and on the same day Christian was handed
over to his mother, E.R., on the premises of the hospital. E.R. and
Christian have been living in Sweden since that time. This final
phase of the events was also widely reported on in the media.
B. The proceedings under the Media Act
On
7 July 2004 Christian W., represented by his mother, brought
proceedings under Sections 7 and 8a of the Media Act against the
applicant company, seeking damages and publication of the ensuing
judgment, claiming that a series of articles on the above-mentioned
events published by the applicant company between 7 January and 16
February 2004 and which contained a detailed description of the
events, giving his full name and illustrated by pictures of him, had
breached his rights under those provisions.
He
argued that the reporting on him had interfered with his strictly
private life in a manner likely to expose and compromise him in
public. Moreover, the articles constituted a breach of section 7a of
the Media Act, which prohibited reporting on the victim of a crime in
a manner which made him or her recognisable in public; that was only
allowed if the importance of the offence or the persons implicated
meant that there was a preponderant public interest in the
information. Both applications were lodged with the Vienna Regional
Criminal Court.
On 19 October 2004 the Regional Court gave a detailed
judgment in the case, which referred to the following articles
published in the applicant company’s newspaper and summed up by
the Regional Court as follows:
“(1) 7 January 2004
The heading ‘Missing father returns home with his
two boys’, with a picture of Christian. According to the
report, the child’s father returned from holiday with Christian
and his brother and had to go to the police because the boy was being
forced against his wishes to move in with his mother following an
inhuman court decision in the context of a divorce battle.
(2) 8 January 2004
The heading ‘Family drama: Christian needs peace
at last’, accompanied by a picture of the child. The report
describes a failed attempt to take the boy to Sweden and quotes the
head teacher of his primary school as saying that Christian suffers
from anxiety. A large number of people, some of whom have signed a
petition, are reported to be campaigning for Christian to remain with
his father.
(3) 16 January 2004
(a) On the front page, the heading ‘My
best friend is my dog’. Underneath is a picture of Christian
with his dog and text stating that the child does not wish to go to
his mother.
(b) The heading ‘What’s going on
here is inhuman’, with two photographs of Christian. According
to this article, five police officers entered the primary school in
order to fetch the boy, who refused to go with them. The head
teacher, some parents and classmates are reported as saying that what
happened was inhuman.
(4) 17 January 2004
The heading ‘Mad scramble for 8-year-old’,
with a picture of Christian. The report states that several different
people want the child, but no one has asked his opinion, resulting in
an inhuman tug-of-war which is already affecting the child
psychologically. The article further reports that a bailiff went to
the child’s father’s flat but found no one at home.
(5) 27 January 2004
(a) On the front page, the heading
‘Christian’s battle for his home’, with a picture
of the plaintiff showing him grimacing as he resists being taken
(into the police car) by the bailiff, while his brother tries to
obstruct the bailiff.
(b) The heading ‘You have no idea what
you’re doing to the child’, with two more pictures. The
article describes the child being taken from the babysitter’s
car to the police car. It likens the scene to something from a
distant dictatorship, with two bailiffs trying to tear the young
plaintiff away from his familiar surroundings by brute force, against
his will and despite his cries for help. Neighbours and friends of
the family are reported as crying with rage and directing abuse at
the court officials. The plaintiff reportedly sustained a serious
injury to his spine at the hands of the bailiffs and had to be taken
to hospital.
(6) 28 January 2004
(a) On the front page, the heading ‘The
whole of Salzburg up in arms’, accompanied by a photograph of
the child lying in a hospital bed wearing a surgical collar.
According to the article, the child was injured by the bailiffs’
rough treatment, and everyone was appalled and angered.
(b) The heading ‘Bailiff pursues
8-year-old right into hospital’, with three pictures of the
plaintiff, one showing him on a stretcher, one of him grimacing in
pain in the arms of the bailiff while his brother tries to obstruct
the latter, and a close-up of the child, again grimacing in pain,
next to the bailiff and the car. The article also details rough
treatment by the bailiffs, reportedly causing injury to the child,
who is said to have complained of neck pains and to have told
reporters how he had been punched in the back of the neck by one of
the bailiffs. The doctor treating him is reported to have fitted a
surgical collar.
(c) The heading ‘Cries for help rang
out in the night’, again with pictures of the child and reports
on the public’s reaction to the bailiffs’ methods;
(d) The heading ‘All for the good of
the child’, together with the court’s findings and a
picture of the child and
(e) letters from readers angered by the
treatment of the child by his mother and the court, again with a
picture of the plaintiff.
(7) 29 January 2004
(a) Heading on front page ‘Christian
abducted from hospital’, together with a photograph.
(b) The heading ‘Whole country moved by
abduction’, with two photographs. The article criticises the
allegedly rough methods of the bailiffs.
(c) The heading ‘Did the bailiff want
to put a sticker on the child?’, also with critical comments.
(d) The heading ‘Abduction from
hospital at dead of night’, also with a photograph The article
describes the child’s removal from the hospital by his mother
and quotes the father as saying that unless tough action is taken
against the bailiffs, he will lodge a complaint.
(e) The heading ‘Minister Böhmdorfer
says violence against children is unacceptable’ again with a
photograph and comments on the case, including by the then Justice
Minister Dr Dieter Böhmdorfer, who condemns violence against
children.
(8) 30 January 2004
(a) The heading ‘Everyone wants
Christian finally left in peace’: another report on the
mother’s flight with her child, accompanied by a photograph of
the child.
(b) The heading ‘Scenes like those with
Christian are completely avoidable’, also with a photograph.
Comments on the case by a crisis-management expert.
(9) 31 January 2004
(a) The heading ‘Christian’s case
reopened’, with photograph. The report states that a new expert
psychological opinion on the child is to be ordered.
(b) The heading ‘Custody battle –
the story so far’, describing events up to that point.
(c) The heading ‘Blind hatred in salmon
pink’, with comments by Günther Traxler, again with a
picture of Christian grimacing in pain as the bailiff tries to put
him in the police car.
(10) 2 February 2004
Under the heading ‘Christian already in Sweden’,
a report stating that the child has already been taken to Sweden by
his mother and has had to leave his beloved dog behind. The report is
accompanied by a picture.
(11) 12 February 2004
The heading ‘I don’t want to stay here any
longer’, again with three pictures of Christian. The reporter
writes that the judge and bailiffs will have to answer to a
disciplinary board and that Christian no longer wishes to stay with
his mother in Sweden but wants to return to his father in Austria.
(12) 13 February 2004
The heading ‘Interpol soon to search for missing
Christian’, again with a picture of the child. The report
states that the boy has tried to run away from his mother and has
disappeared.
(13) 16 February 2004
A reader’s letter under the heading ‘Violence
is not the answer’, in which a 12 year old criticises
the judge, again with a picture showing Christian grimacing in pain.”
The
Regional Court allowed the action and ordered the applicant company
to pay damages in the amount of EUR 136,000, to publish the judgment
in its newspaper, and to bear the costs of the proceedings. The
Regional Court found that by publishing the above articles containing
details of the custody dispute over nine-year-old Christian W., and,
moreover, disclosing his full name and accompanied by a photograph of
him partly showing a highly distressed facial expression, the
applicant company had exposed his strictly private life in a manner
likely to compromise him in public, in breach of section 7 of the
Media Act. Moreover, the articles published on 27, 28 and 29 January
2004 had, without justification, disclosed the identity of a person
who had been the victim of a criminal offence to a large and not
directly informed circle of people, in breach of section 7a of the
Media Act.
The
Regional Court accepted that there existed a direct link between the
events reported on and the public interest because of the sharp
criticism voiced of the conduct of the court officials who had
attempted to enforce the custody order. However, the person with
custody of Christian had not agreed to publication and the public
interest in the events could have been satisfied without giving the
child’s full name and publishing pictures of him.
On
29 March 2005 the applicant company appealed. Relying on Article 10
of the Convention, it argued, inter alia, that the Regional
Court had failed to take into account the fact that there had already
been an ongoing debate and that Christian’s father, acting as
his son’s spokesman and in his interests, had informed the
media of the events. Furthermore, it claimed that it had only acted
as a public watchdog, informing the public about the proceedings and
criticising the domestic authorities in the public interest.
On
21 September 2005 the Vienna Court of Appeal partly allowed the
appeal. It found that there had been no breach of section 7a of the
Media Act, because under that provision a compensation claim existed
only if a media outlet had described acts by which someone had become
the victim of a crime and if the description violated the victim’s
protected interests. In the present case, however, it was not the
description of a criminal act that had breached Christian’s
protected interests, since the proceedings against the court
officials had ended without a conviction. The Court of Appeal
therefore remitted the case to the Regional Court on this point.
It
further emphasised that by giving details of the plaintiff’s
intimate family life and his full name, and by adding pictures of
him, the newspaper had intruded into his strictly private life, as
these details had merely been given in order to create a sensation
and satisfy the curiosity of its readers. Even if there was a link to
public life, a media outlet could report on a person’s strictly
private life only to the extent necessary to satisfy the need for
information related to those elements which were of relevance to the
public interest. Reporting on events relating to a person’s
strictly private life therefore had to be appropriate to the
circumstances and proportionate. In the present case it had not been
necessary for the purpose of informing the public of alleged
shortcomings within the judiciary, nor had it been necessary to
expose in such an intense and striking manner the severe strain being
suffered by the juvenile plaintiff by inserting photographs showing
his distress and despair, mentioning his full name and setting out
the details of his seizure.
On 19 May 2006 the Regional Court ruled again on the
case and found no breach of section 7a of the Media Act. It
accordingly reduced the amount of compensation to EUR 130,000.
On
14 March 2007 the Vienna Court of Appeal upheld that decision.
II. RELEVANT DOMESTIC LAW
Section
7 of the Media Act, which has the title “Interference with a
person’s most intimate personal sphere” (Verletzung
des höchstpersönlichen Lebensbereiches), reads as
follows:
“(1) If a person’s strictly
private life is discussed or presented in the media in a manner which
is apt to compromise this person in public, the person concerned may
claim compensation from the owner of the media for the injury
suffered. The amount of compensation shall not exceed EUR 20,000 ...
(2) No compensation claim under paragraph 1
exists if
1. the publication at issue is based on a
truthful report on a public session of the National Council or the
Federal Council, the Federal Assembly, a regional diet or a committee
of one of these general representative bodies;
2. the publication is true and has a direct
connection to public life;
3. in the circumstances it could have been
assumed that the person concerned had agreed to the publication;
4. it is a direct broadcast on radio or
television (live programme) and the employees or contractors of the
radio or television station have not neglected the principles of
journalistic diligence;
5. the information has been published on a
retrievable website and the owner of the media or its employees or
contractors have not neglected the principles of journalistic
diligence.”
Section
7a of the Media Act, which has the title “Protection against
divulging a person’s identity in special cases” (Schutz
vor Bekanntgabe der Identität in besonderen Fällen),
reads as follows:
“(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 20,000 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 advancement of the person
concerned.
(3) No compensation claim under paragraph 1
exists if
1. the publication at issue is based on a
truthful report on a public session of the National Council or the
Federal Council, the Federal Assembly, a regional diet or a committee
of one of these general representative bodies;
2. the publication of the information on the
person has been decided officially, in particular for the purposes of
criminal justice or public security;
3. the person concerned has agreed to the
publication or if the publication is based on information given by
that person to the media;
4. it is a direct broadcast on radio or
television (live programme) and the employees or contractors of the
radio or television station have not neglected the principles of
journalistic diligence;
5. the information has been published on a
retrievable website and the owner of the media or its employees or
contractors have not neglected the principles of journalistic
diligence.”
Section
6(1) second sentence of the Media Act, to which reference has been
made above, reads as follows:
“The amount of compensation shall be fixed
according to the extent of the publication, its impact and, in
particular, the type of media and how broadly it is disseminated; the
compensation must not endanger the economic existence of the media
owner.”
Section
8a of the Media Act, which has the title “Separate compensation
proceedings” (Selbständiges
Entschädigungsverfahren), insofar as relevant,
reads as follows:
“In a judgment by which compensation under Section
6, 7, 7b or 7c has been awarded on the basis of a separate
compensation request, the court must also order the publication of
the judgment if the person concerned so requests, ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant company complained under Article 10 of the Convention that
the judgments of the Austrian courts violated its right to freedom of
expression. Article 10 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. 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.”
The
Government contested that argument.
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court notes that it is common ground between the parties that the
Vienna Regional Court’s judgment of 19 October 2004, upheld by
the Court of Appeal, which awarded damages to Christian, constituted
an interference with the applicant company’s right to freedom
of expression, as guaranteed by Article
10 § 1 of the Convention.
An
interference contravenes Article 10 of the Convention unless it is
“prescribed by law”, pursues one or more of the
legitimate aims referred to in paragraph 2, and is “necessary
in a democratic society” for achieving such an aim or aims.
The
Court considers, and this was acknowledged by the parties, that the
interference was prescribed by law, namely by section 7 of the Media
Act. The Court further finds, and this was likewise not disputed
between the parties, that the interference served a legitimate aim,
namely “the protection of the reputation or rights of others”
within the meaning of Article
10 § 2 of the Convention.
The
parties’ argument concentrated on the question whether the
interference had been “necessary in a democratic society”
within the meaning of Article 10 § 2 of the Convention.
1. The parties’ submissions
The
applicant company maintained that the
interference with its right to impart information had not been
necessary in a democratic society. There was no doubt that the event
on which the applicant company had reported had involved questions
which were a subject of public importance, namely the conduct of the
courts and authorities when enforcing the Family Court’s
decision to hand Christian over to his mother, and contributed to the
public discussion which had been triggered by the questionable
conduct of the enforcement officers.
In reporting on the matter the press could not, as
suggested by the Austrian courts, have done so in a merely neutral
and sober way. It was also a corporate necessity to attract the
attention of the public by incorporating entertaining components, as
otherwise it would be practically impossible to reach the public.
Christian’s father had turned to the applicant company for
assistance, as his son had repeatedly expressed the wish to remain
with his father, whereas the Austrian courts had decided to transfer
custody to his mother. The applicant company had therefore reported
on this issue and the way in which the authorities had enforced their
respective decisions. In order to show the public the anguish and
shock which this approach had produced in Christian, it had been
necessary to publish a picture showing the pain in his face and make
clear to the public just what measures the Republic of Austria was
implementing, allegedly in the interest of the child. This effect
could not have been achieved if Christian’s face had been
blurred. For the same reason it had been necessary to report
extensively on how happy and intact Christian’s world had been
while he was still living with his brothers and father.
The
applicant company also argued that the amount of compensation awarded
to Christian had been excessive. Firstly, no punitive damages were
possible under Austrian law and the sum awarded was not proportionate
to the actual injury suffered by Christian on account of the
publication of the impugned material, and secondly, no distinction
had been made between the thirteen different articles published. It
was apparent that in a series of related articles, as in the present
case, a later article with similar content to a previous one could
not injure again to the same extent since the injurious circumstances
would already be known.
The
Government, while acknowledging the essential role played by the
press as a “public watchdog”, asserted that in the
present case the interference with the applicant company’s
freedom of expression had been necessary within the meaning of
Article 10 § 2 of the Convention. They argued in particular that
the domestic courts had had to weigh the applicant company’s
interest in imparting information on an issue of public interest
against the right to protection of the most intimate sphere of life
of the person on whom it reported, which was equally protected by the
Convention, namely, the right to respect for his or her identity,
protected by Article 8 as part of a person’s private life. The
necessity to carry out such a weighing of interests was laid down in
section 7 of the Media Act.
The
Austrian courts had found that that the articles published by the
applicant company constituted an intrusion into the strictly private
life of Christian, a minor. In its judgment of 19 October 2004 the
Regional Court had explained in detail that even though it was
clearly permissible to publish an article on the events surrounding
the handing over of Christian to his mother, and the conduct of the
courts and authorities in this respect, this did not mean that in
doing so the applicant company had the right to publish photographs
of Christian that had not been rendered anonymous, showing him in a
state of pain and despair, and to disclose his identity and other
details of his family life, his health and his emotional state. The
disclosure of such information on Christian was not relevant for the
understanding of the details of the events of which he had been the
victim, nor was it necessary in order to raise public awareness
concerning the conduct of the authorities. In such cases the State
had a positive obligation to ensure effective protection against
breaches of the personal integrity of children, as a particularly
vulnerable group.
Lastly,
the Government argued that the amount of compensation awarded to
Christian, namely EUR 130,000, was not disproportionate, as that
figure had to be seen against the background of the wide
dissemination of the information by the applicant company and its
influence on public opinion. Christian had already been affected
psychologically by the custody dispute between his parents, of which
he was the victim, and, in this situation had been exposed by the
applicant company to the curiosity of the millions of readers of its
newspaper exclusively for the purpose of raising sales figures as a
result of an one-sided emotive reporting. This had caused him
additional and significant suffering. Another important factor was
the extensive dissemination of the information and the inherently
strong influence the applicant company’s newspaper had on
public opinion. It had to be noted that the Kronen Zeitung
reached (in 2006) 43.6% of the entire Austrian population – up
to 60% of the population in some Länder – as
readers, which, in relative terms, made it one of the newspapers with
the highest circulation in the world. For this reason a significant
amount of compensation had to be awarded by the Austrian courts.
2. The Court’s assessment
(a) General principles
According
to the Court’s well-established case-law, the test of necessity
in a democratic society requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”, whether it was proportionate to the legitimate aim
pursued, and whether the reasons given by the national authorities to
justify it are relevant and sufficient (see The Sunday Times v.
the United Kingdom (no. 1), 26 April 1979, § 62, Series A
no. 30). In assessing whether such a need exists and what measures
should be adopted to deal with it, the national authorities are left
a certain margin of appreciation. This power of appreciation is not,
however, unlimited but goes hand in hand with a European supervision
by the Court, whose task it is to give a final ruling on whether a
restriction is reconcilable with freedom of expression as protected
by Article 10 (see Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 58, ECHR 1999 III).
An
important factor for the Court’s determination is the essential
function of the press in a democratic society. Although the press
must not overstep certain bounds, in particular in respect of the
reputation and rights of others or the proper administration of
justice, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see Bladet
Tromsø and Stensaas, cited above, § 59, and as a
recent authority, Flinkkilä and Others v. Finland, no.
25576/04, § 73, 6 April 2010). By reason of the “duties
and responsibilities” inherent in the exercise of freedom of
expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith and on an accurate factual
basis and providing reliable and precise information in accordance
with the ethics of journalism (see Fressoz and Roire v. France
[GC], no. 29183/95, § 54, ECHR 1999 I, and, as a recent
authority, Eerikäinen and Others v. Finland, no. 3514/02,
§ 60, 10 February 2009).
Whilst
it is true that the methods of objective and balanced reporting may
vary considerably and that it is therefore not for this Court, nor
for the national courts, to substitute its own views for those of the
press as to what technique of reporting should be adopted (Jersild
v. Denmark, 23 September 1994, § 31, Series A no. 298),
editorial discretion is not unbounded. Not only does the press have
the task of imparting such information and ideas: the public also has
a right to receive them. Were it otherwise, the press would be unable
to play its vital role of “public watchdog” (Observer and
Guardian v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25
June 1992, § 63, Series A no. 239; Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR
1999-III; and, more recently, Gutiérrez Suárez v.
Spain, no. 16023/07, § 25, 1 June 2010).
The
Court has always stressed the contribution made by photographs or
articles in the press to a debate of general interest (see Standard
Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June
2009, with further references). However, the publication of
photographs and articles the sole purpose of which is to satisfy the
curiosity of a particular readership regarding the details of a
public figure’s private life cannot be deemed to contribute to
any debate of general interest to society despite the person being
known to the public. In such conditions freedom of expression calls
for a narrower interpretation (see MGN Limited v. the United
Kingdom, no. 39401/04, § 143, 18
January 2011, and Von Hannover v. Germany,
no. 59320/00, § 65-66, ECHR 2004-VI). Moreover, although
freedom of expression also extends to the publication of photographs,
this is an area in which the protection of the rights and reputation
of others takes on particular importance. Photographs appearing in
the tabloid press are often taken in a climate of continual
harassment which induces in the person concerned a very strong sense
of intrusion into their private life or even of persecution (see Von
Hannover v. Germany, cited above, at § 59, and Hachette
Filipacchi Associés v. France, no. 71111/01, § 42, 14
June 2007).
The subject matter at issue in this case relates, on
the one hand, to the right of the press under Article 10 of the
Convention to inform the public on matters of public concern
regarding ongoing court proceedings and on the manner in which
decisions by the courts are enforced and, on the other, to the
State’s positive obligations under Article 8 of the Convention
to protect the privacy of persons, in particular minors, to whom such
proceedings relate. When verifying whether the authorities struck a
fair balance between two protected values guaranteed by the
Convention which may come into conflict with each other in this type
of case – freedom of expression protected by Article 10 and the
right to respect for private life enshrined in Article 8 – the
Court must balance the public interest in the publication of the
information and the need to protect private life (see Hachette
Filipacchi Associés v. France, no. 71111/01, § 43,
ECHR 2007-VII). The balancing of individual interests which may well
be contradictory is a difficult matter and Contracting States must
have a broad margin of appreciation in this respect since the
national authorities are in principle better placed than this Court
to assess whether or not there is a “pressing social need”
capable of justifying an interference with one of the rights
guaranteed by the Convention (see MGN Limited, cited above, §
142, and Egeland and Hanseid v. Norway, cited above, §
55).
(b) Application of these principles to the
present case
In the present case the applicant company published in
its newspaper Kronen Zeitung, between 7 January 2004 and 16
February 2004, a series of thirteen articles about a dispute between
parents over custody of their child, Christian. In the custody
proceedings the competent courts had refused to transfer custody of
Christian to the father, who had refused to comply with that
decision. Various attempts at enforcement were unsuccessful because
Christian and his father had gone into hiding, and in January 2004
the competent court ordered that Christian be brought before the
court by force. On 26 January 2004 court officers went to the house
of Christian’s father and tried to seize the child, who cried
and resisted. These scenes were the subject of wide media coverage,
notably by the applicant company’s newspaper, because they were
observed and photographed by several journalists, who had been
informed and had hurried to the spot. The applicant company’s
newspaper reported extensively on this case and the articles
published disclosed Christian’s identity and details of his
family life, his health and his emotional state, and they were
accompanied by photographs of Christian that had not been rendered
anonymous and which showed him in a state of pain and despair.
Thereupon,
Christian brought proceedings under the Media Act against the
applicant company, claiming compensation in respect of reporting
constituting an intrusion into his strictly private life (section 7
of the Media Act) and reporting on the victim of a crime in a manner
rendering that person recognisable by the public (section 7a of the
Media Act). On 19 October 2004 the Vienna Regional Criminal
Court found against the applicant company, ordering it to pay
compensation and to publish the judgment in its newspaper. On appeal
the Court of Appeal found on 21 September 2005 that the
reporting at issue had been in breach of the obligation not to
interfere with a person’s strictly private life, but rejected
the other ground for compensation, namely, reporting on the victim of
a crime in an identifiable manner, and remitted the case to the
Regional Court on that point. On 19 May 2006 the Vienna Regional
Criminal Court decided again on the case following the findings of
the Court of Appeal, and reduced the compensation accordingly. The
Court of Appeal upheld that decision except for costs on 14 March
2007. The Regional Court and the Court of Appeal considered that the
reporting at issue had breached Christian’s right to respect
for his strictly private life, and found that there had existed no
predominant public interest in the revealing of his identity and
giving details of his family life, his health and his emotional
state, or the publishing of photographs taken at the time of the
unsuccessful attempt to enforce the court’s order to hand him
over to his mother showing him in a state of pain and despair.
In
the Court’s view the reasons given by the Regional Court and
upheld by the Court of Appeal were undoubtedly “relevant”
reasons for the purposes of the necessity test to be applied under
Article 10 § 2. It will next examine whether they were also
“sufficient”.
The
Court agrees with the domestic courts that the case concerned a
balancing of the applicant company’s right to freedom of
expression under Article 10 against Christian’s right to
protection of his strictly private life. In such cases one factor the
Court has taken into account is the position of the person concerned
by the publication: whether or not he or she was a “public
figure” or had otherwise “entered the public scene”
(see, for instance, Flinkkilä and Others, cited above, §
83, and Eerikäinen and Others, cited above, § 66).
Another important factor is whether the articles or photographs in
the press contributed to a debate of general interest (see
Flinkkilä and Others, cited above, § 76, and
Eerikäinen, cited above, § 66).
In
the present case, Christian is not a public figure, nor does the
Court consider that he has entered the public scene by becoming the
victim of a custody dispute between his parents which attracted
considerable public attention.
The
Court further considers that the articles at issue dealt with a
matter of public concern, namely the appropriate enforcement of
custody decisions and whether and to what extent force may or should
be used in this context. Such a matter could, and in the present case
did, give rise to a public debate. However, given that neither
Christian himself nor his parents were public figures or had
previously entered the public sphere, it cannot be considered that
the disclosure of his identity was essential for understanding the
particulars of the case (see “Wirtschafts-Trend”
Zeitschriften-Verlagsgesellschaft mbH (no. 2) v. Austria (dec.),
no. 62746/00, 14 November 2002). In this connection, the Court
notes that it was acceptable for the applicant company to report on
all relevant details concerning the case of Christian, in particular
as regards the problematic attempt to enforce the decision taken in
the custody proceedings by the court officers on 26 January 2004, but
not to reveal the identity of Christian while publishing the most
intimate details about him, or publish a picture of him from which he
could be recognised.
Moreover,
the Court is not persuaded by the applicant company’s argument
that the publication of the photograph which showed the pain in
Christian’s face was necessary in order to ensure the
credibility of the story. In this regard the Court reiterates that
the publication of photographs and articles the sole purpose of which
is to satisfy the curiosity of a particular readership regarding the
details of a public figure’s private life cannot be deemed to
contribute to any debate of general interest to society despite the
person being known to the public. In such conditions freedom of
expression calls for a narrower interpretation (see MGN Limited,
cited above, § 143, with further references). The Court
considers that such considerations also apply to persons, like
Christian, who are not public figures.
On
the other hand, there is no doubt that the preservation of the most
intimate sphere of life of a juvenile who had become the victim of a
custody dispute and had not himself stepped into the public sphere
deserved particular protection on account of his or her vulnerable
position.
The
Court has further to examine whether the interference with the
applicant company’s right to impart information was
proportionate. It notes in the first place that the applicant company
was not subject to a fine imposed in criminal proceedings but was
ordered to pay compensation for the injury caused to a person who had
suffered from an intrusion into his strictly private life. However,
the amount of compensation, EUR 130,000, is exceptional, and the
Court observes in this connection that in specific circumstances an
exceptional and particularly high amount of damages for libel (see
Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §
51, Series A no. 316 B, and Independent News and Media and
Independent Newspapers Ireland Limited v. Ireland, no. 55120/00,
§ 115, ECHR 2005 V (extracts)), or unusually high cost
awards in defamation proceedings (see MGN limited, cited
above, § 217), may raise an issue under Article 10 of the
Convention.
In
the present case the applicant company reported on the case of
Christian in a series of thirteen articles, each time repeating
information on his strictly private sphere revealing intimate details
of his life, his emotional state and his health, and repeatedly
publishing photographs of him. Even though these news items had
already become known to the public, at a certain point their frequent
repetition was capable of creating a climate of continual harassment
inducing in the person concerned a very strong sense of intrusion
into their private life or even of persecution (see Von Hannover,
cited above, § 59).
Another
element which has to be taken into account is the particularly wide
circulation of the applicant company’s newspaper, which
rendered the interference more intense. In this connection, the
Government submitted, and this was not disputed by the applicant
company, that (in 2006) the Kronen Zeitung reached 43.6% of
the entire Austrian population, amounting to approximately eight
million inhabitants – and up to 60% of the population in some
of the Länder – as readers, which, in relative
terms, makes it one of the newspapers with the highest circulation in
the world.
Lastly,
the Court has to examine whether in domestic law there existed
adequate and effective domestic safeguards against disproportionate
awards (see Independent News and Media and Independent Newspapers
Ireland Limited, cited above, § 115). In this regard, the
Court observes that a maximum amount for compensation in a single
case is provided for in section 7(1) of the Media Act, which provides
that damages must not exceed EUR 20,000. Moreover, section 6(1) of
the Media Act contains clear guidelines for the fixing of the amount
of damages, and provides, inter alia, that the compensation
must not endanger the economic existence of the media owner. The
Court considers that these safeguards are adequate and effective
preventing disproportionate awards. The Court therefore concludes
that the amount awarded in damages was not disproportionate in the
particular circumstances of the case.
In
sum, the Court finds that in awarding compensation for the
interference with Christian’s private life by the applicant
company, the respondent State acted within its margin of appreciation
in assessing the need to protect his privacy. It is satisfied that
the restriction on the applicant company’s right to freedom of
expression resulting from the judgments of the Regional Court and the
Court of Appeal was supported by reasons that were relevant and
sufficient, and was proportionate to the legitimate aims pursed.
There
has accordingly been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application
admissible;
Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 19 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
