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FIRST SECTION

DECISION

Application no. 16230/07
by DIE FREIHEITLICHEN IN KÄRNTEN
against Austria

The European Court of Human Rights (First Section), sitting on 6 March 2012 as a Chamber composed of:

Anatoly Kovler, President,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 16 April 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Die Freiheitlichen in Kärnten, is an Austrian political party. It was represented before the Court by Gheneff - Rami - Sommer, a partnership of lawyers practising in Klagenfurt. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 November 2005 the chair of the Social Democratic Party in Carinthia (Sozialdemokratische Partei in Kärnten), S.-K., made the following statement about the floating-stage (Seebühne), a theatre stage floating on Lake Wörthersee in Klagenfurt, on Radio Carinthia (Radio Kärnten) in a programme called “Culture of Dispute” (“Streitkultur”):

“... First, there is the topic of the sound engineering. In order to be successful in open-air performances it is necessary to have sound engineering which differentiates between sound sources. This is not the case at the moment, for if you have ever been to the floating-stage you will have really started wondering who is singing and where on the stage, because one cannot tell where the sound comes from and one cannot locate who is singing ...

... It will not be possible – within reasonable means – [to obtain] the sum of 10 million for construction and for the sound engineering and lighting equipment ...”

The applicant party discovered that the sound system in question had been purchased from and delivered by a company of which S.-K.’s husband, H.S., a former ice-hockey player in Carinthia, was the general manager.

On the same day an article was published on the website of the Austrian Broadcasting Corporation (ORF) about the radio programme and the topic of the floating-stage. A paragraph of this article read as follows:

“In last Monday’s edition of the ‘Culture of Dispute’, which dealt with the floating-stage, [S.-K.] criticised quite a number of deficiencies of the stage, in particular the poor quality of the sound system. This system, however, had been delivered by the company of which her husband, H.S., is managing director and general manager.”

On 4 December 2005 the applicant party paid for the publication of a one-page advertisement in three daily newspapers under the heading “advertisement” (Anzeige). The content of the “advertisement” included a commentary, an article and a picture of S.-K. and her husband, H.S. In the picture one could read “It’s all going very well for them: SPO chief S.-K. and husband H.S.”. Moreover, two extracts from faxes were inserted in the picture, the first showing a total order value of 4,118,214 Austrian schillings (ATS), the second stating “extension of video system and addition to the sound system of the floating-stage in 2001 for ATS 1,334,968.32”. Below the picture the following article was published:

“Floating-stage: S.-K. criticises – her husband cashes in!

The sound system of the floating-stage cost more than five million schillings. What nobody knew so far: the husband of SPÖ chief S.-K. is general manager of the company which sold and installed the sound system! ...”

Next to this article a comment was published with the headline: “Commentary: Home-run, Mr S.” and contained the following impugned text:

“... S.-K. conceded a fatal goal in the SPÖ’s floating-stage power-play. Scored by her own husband, H.S., of all people. No wonder they are at loggerheads within the SPÖ, and who knows, probably also in the S. household ...”

Subsequently, on 7 April 2006, H.S. brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant party. He requested that the applicant party be ordered to refrain (Unterlassung) from publishing without his consent his picture in connection with reports that he had received millions of Austrian schillings for a dysfunctional sound system for the Carinthian floating-stage, whose quality had been criticised by his wife, and reports that he had scored a goal against his wife and that he and his wife were now at loggerheads. He also claimed compensation in this connection. H.S. further requested a preliminary injunction (einstweilige Verfügung) prohibiting the applicant party from publishing his picture in connection with the above statements until a final decision had been taken in the main proceedings.

On 17 June 2006 the Klagenfurt Regional Court granted the request for the preliminary injunction. It noted that the claimant was not a politician and had not chosen to enter the arena of public debate himself. It held that the claimant’s interests had been infringed, because the average reader would understand the published report as saying that the claimant’s wife had criticised his sound system, although he was responsible for the poor quality of the system and had moreover received millions for it. Furthermore, the court came to the conclusion that, in connection with the published picture of the claimant, his reputation had been damaged in public opinion.

On 2 August 2006 the Graz Court of Appeal upheld this decision. It held that, although they were described in the headings as “advertisements”, the layout of the published pages had been consistent with that of the respective newspapers and the pages were thus not distinguishable for the average reader from general newspaper articles. It also noted that the pages gave the impression to the average reader that the claimant had earned millions from the floating-stage, which had been criticised by his wife, and that he had thus been unjustifiably enriched. Only in the text of the article would one have found the remark that the claimant was only the signing clerk of the company which had secured the order. However, this would not suffice to catch the attention of the average reader, who often did not read articles accurately. The court thus found that the manner in which the picture and headline had been published gave rise to the misinterpretation that the claimant had enriched himself, and that therefore his interests under section 78 of the Copyright Act had been infringed. Although the court conceded that the applicant party also had an interest in the publication, in order to criticise a political opponent in the quest for gaining votes, the publication of the claimant’s picture had not been justified, for the reasons stated above.

On 17 October 2006 the Supreme Court dismissed the applicant party’s extraordinary appeal (außerordentlicher Revisionsrekurs).

Meanwhile the main proceedings were resumed. On 30 December 2006, following an agreement reached between the parties, the Regional Court gave a judgment by consent (Anerkenntnisurteil) in which the applicant party acknowledged the claim of H.S. as well founded. The judgment was served on the parties on 4 January 2007 and entered into force on 5 February 2007, as none of the parties appealed.

B. Relevant domestic law

Section 78 of the Copyright Act, in so far as relevant, reads as follows:

“(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.”

COMPLAINT

The applicant party complained under Article 10 of the Convention that the injunction issued against it by the Austrian courts had infringed its right to freedom of expression.

THE LAW

The applicant party complained that the injunction issued against it by the Austrian courts had infringed its right to freedom of expression. It relied on Article 10 of the Convention which 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 argued that the applicant party was no longer a victim of an alleged violation of Article 10 of the Convention, because in the main proceedings on the action of H.S. it had concluded a settlement with him which had resulted in a judgment by consent recognising the claim of H.S. as well founded. Since the applicant party had not taken the main proceedings to a final judgment, the application was also inadmissible for non-exhaustion of domestic remedies. Moreover, at the time the applicant party filed its application to the Court, the judgment by consent had already been given by the Regional Court, but the applicant had deliberately omitted this information in its application to the Court. It was therefore justified in the Government’s view to strike out the application for abuse of the right to petition.

The Government argued further that in any event and even considering the preliminary injunction as an interference with the applicant party’s rights under Article 10, that interference had been justified as it was prescribed by law, namely section 78 of the Copyright Act, pursued a legitimate aim, namely the protection of the rights and reputation of others, that is of H.S., and was necessary in a democratic society. H.S. had not become a public figure by marrying a politician and he himself had made no steps into the public sphere. There was no overriding public interest in the publication of H.S.’s picture and the applicant party could have published any comments they wished to make about the floating stage and S.-K. without publishing his picture.

The applicant party pointed out that the temporary injunction had been valid until the end of the proceedings and had been binding on it. Moreover, the judgment by consent did not mean that the applicant party had agreed with the claimant but had merely procedural value and was based on the consideration of avoiding additional costs by continuing the main proceedings in which the applicant party had little prospect of success. There was also no abuse of the right to petition. It submitted further that the preliminary injunction had not been necessary in a democratic society. The Austrian courts had clearly overstepped the margin of appreciation afforded to them as. H.S. was a public figure. By being married to a politician, being a former ice-hockey player and by furnishing the sound system he had stepped into the public sphere and therefore had exposed himself to criticism.

The Court observes that in two previous cases concerning complaints under Article 10 in which the applicant had entered into a settlement undertaking to refrain from repeating a statement, it found that an applicant who entered into such a settlement had accepted the limitation of its right to freedom of expression and renounced the use of available remedies in respect of the complaint. Therefore the applicant could not claim to be a victim within the meaning of Article 34 of the alleged violation (see Standard Verlags GmbH v. Austria, no. 13071/03, §§ 33-34, 2 November 2006, and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 36, 4 June 2009).

In the present case the applicant party also concluded a settlement with the claimant H.S. whereby it agreed to refrain in the future from publishing his picture together with a text specified in the terms of the settlement. The Court sees no reason to come to another conclusion in the present case. Therefore the application has to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.

It is therefore not necessary to consider the Government’s further objections that the applicant failed to exhaust domestic remedies and that omitting information about the settlement from the application constituted an abuse of the right to petition.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Anatoly Kovler
Registrar President