European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF STANDARD VERLAGSGESELLSCHAFT MBH
v. AUSTRIA

 

(Applications nos. 19068/13 and 73322/13)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

23 November 2017

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Standard Verlagsgesellschaft mbH v. Austria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Erik Møse, President,
          Yonko Grozev,
          Gabriele Kucsko-Stadlmayer, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 31 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 19068/13 and 73322/13) against the Republic of Austria both lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian companies, Standard Verlagsgesellschaft mbH and derstandard.at GmbH, on 13 March and 14 November 2013 respectively.

2.  During the proceedings before the Court, derstandard.at GmbH was merged with Standard Verlagsgesellschaft mbH. Since that time, the applicant company has been one single company, Standard Verlagsgesellschaft mbH (“the applicant company”).

3.  The applicant company was represented by Ms M. Windhager, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

4.  The applicant company alleged a violation of its right to freedom of expression.

5.  On 16 December 2015 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The background of the case

6.  The applicant company, a limited liability company based in Vienna, owns and publishes the daily newspaper Der Standard and the online news portal derstandard.at.

7.  The Carinthian Regional Hospital Operating Company (Landeskrankenanstalten-Betriebsgesellschaft - hereinafter “the KABEG”) is a public-law institution (Anstalt öffentlichen Rechts) which operates five hospitals in Carinthia previously owned by the Region of Carinthia (Land Kärnten).

8.  The KABEG is governed and represented by the board of management (Vorstand) which consists of at least one person and is appointed and supervised by the supervisory board (Aufsichtsrat). The supervisory board consists of three members of the Regional Government, one person who is appointed by the Regional Government and two representatives of the employees of the KABEG. The chairperson of the supervisory board is appointed by the Regional Government.

9.  In 2011 I.M. was the member of the board of management in charge of human resources. K.S. was the chairperson of the supervisory board and leader of the parliamentary group (Fraktionsführer) of the Freedom Party of Carinthia (Freiheitliche Partei in Kärnten) in the Carinthian Regional Parliament (Landtag). His brother, U.S., was Deputy Governor of the Region of Carinthia.

10.  Because of financial problems, rehiring (Wiedereinstellung) of high-level managers and accusations of tortious interference on the part of politicians in the recruitment process, management errors and corruption within the KABEG, a public debate arose in 2010. On 28 October 2010 the medical director of Klagenfurt Regional Hospital (Landeskrankenhaus), who was in charge at that time, criticised I.M. in a confidential employees’ meeting of the medical doctors of the hospital. Only a few hours later the medical director was dismissed without notice.

B.  Article giving rise to the applications

11.  On 25 November 2011 on the internet news portal derstandard.at and on 26 November 2011 in the daily newspaper Der Standard the following article was published:

“Spying accusation against KABEG board of management

...

The [KABEG] board of management ..., [I.M.], is under heavy pressure. According to the minutes of a meeting disclosed on Friday, she is supposed to have ordered the spying on a confidential employees’ meeting [Betriebsversammlung] for doctors of Klagenfurt Regional Hospital herself. These minutes were drafted after the employees’ meeting on 28 October 2010 in the course of a subsequent meeting in the office of the board of management and they state: ‘[I.M.] explains that she has, as a precaution, sent an informant, who wrote up a transcript [Wortprotokoll].’

‘Stasi methods’

Prominent victim of this informant was the medical director, [M.A.], who had accused the KABEG management of using ‘Stasi methods’ against insubordinate doctors. M.A. was dismissed without notice immediately after the employees’ meeting. The informant was a trainee lawyer under [I.M.]’s lawyer. [I.M] always claimed that she had not been aware of this operation, that the KABEG lawyer had acted on his own volition. [He] took the blame and therefore had to explain himself before the bar association. K.S. ([Freedom Party of Carinthia]), chairperson of the supervisory board, who also put pressure on journalists in respect of critical reports on the KABEG, is supposed to be the spiritus rector of the spying operation.

The now disclosed minutes (which are at the disposal of Der Standard) cast doubts on [I.M.]’s version ...”

C.  Proceedings under the Media Act (application no. 19068/13)

12.  On 10 January 2012 K.S., referring to the statement, that he was supposed to be the spiritus rector of the spying operation, initiated private prosecution proceedings for defamation under the Media Act (Mediengesetz) against the applicant company. He claimed compensation and demanded publication of the judgment, arguing that the statement had been a statement of fact, lacked any factual basis and was untrue.

13.  The applicant company argued that the statement was a critical but permissible value judgment and had had a factual basis: K.S. had cultivated a friendship with I.M. and had supported her in the ongoing public debate; moreover, he had been associated with other spying accusations and had even announced in public that he would investigate and spy on politically unpopular individuals in order to get information to discredit them in public. The article did not allege that K.S. had personally initiated or ordered that a spy be sent to the employees’ meeting; however, by regularly applying and publicly announcing such practices he had created a climate and environment where such unfair methods were anticipated as “normal” and commonplace.

14.  On 21 March 2012 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) rejected K.S.’s claims under the Media Act as inadmissible, reasoning that the term spiritus rector was neither defamatory nor mocking, nor did it allege specific conduct. Being called a spiritus rector meant being seen as a spiritual or ideological guide (geistiger oder weltanschaulicher Führer), which, especially for politicians, could not be seen as a negative quality and only suggested that others felt inspired by this person.

15.  On 18 April 2012, following a prior complaint lodged by K.S., the Vienna Court of Appeal (Oberlandesgericht) quashed the Regional Criminal Court’s decision of 21 March 2012 and ordered it to initiate proceedings under the Media Act against the applicant company. It held that, taking into account the contents of the whole article, the statement suggested that K.S. had been the “spin doctor” (Ideengeber) of the spying operation. Based on this interpretation, the article would qualify as defamatory and originate a claim under the Media Act. It was thus required to examine the factual basis of the article.

16.  In the subsequent proceedings before the Regional Criminal Court the applicant company explicitly declared that it would not provide evidence as to the truth (Wahrheitsbeweis) of K.S. having acted as a spin doctor or the like. It maintained its position that the statement was a value judgment.

17.  On 15 May 2012 the Vienna Regional Criminal Court ordered the applicant company, under Section 6 of the Media Act, to pay 3,000 euros (EUR) (EUR 1,500 for each publication of the article) in compensation to K.S. on account of defamation, and to publish the judgment. Assuming that the statement was to be understood in the way set out in the Court of Appeal’s judgment of 18 April 2012, and noting that the applicant company had not provided evidence as to the truth of the allegation, it found that the article and statement qualified as defamation within the meaning of Article 111 § 1 and 2 of the Criminal Code (Strafgesetzbuch).

18.  On 26 September 2012 the Vienna Court of Appeal dismissed the applicant company’s appeal against this decision. It held that describing someone as the spiritus rector of a negatively connoted spying operation had left no doubt for the readers addressed that the suggestion had been that this person had been the initiator and spin doctor of this operation. The statement implied a “specific and sufficiently concrete” (spezifisch und hinreichend konkretisiert) accusation of conduct and thus qualified as a statement of fact, as to the truth of which the applicant company had failed to provide evidence. As regards the applicant company’s complaint about the amount of compensation granted, the Court of Appeal held that it did not even amount to 10% of the maximum compensation permitted by law, and was not excessive in relation to the circulation of the newspaper and the online news portal.

19.  That decision was served on the applicant company’s counsel on 24 October 2012.

20.  The applicant company subsequently lodged an application for renewal of the criminal proceedings (Erneuerung des Strafverfahrens) under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof), complaining under Article 10 of the Convention of a violation of its right to freedom of expression.

21.  On 26 June 2013 the Supreme Court rejected the application. It stated that the Court of Appeal’s considerations as to the qualification of the statement as a statement of fact did not raise concerns, and held that such statements of fact, which had not been proven to be true and were thus defamatory, were not protected by Article 10. It concluded that the interference with the applicant company’s right to freedom of expression had been prescribed by law, had pursued the legitimate aim of protecting the reputation of others and had been necessary in the circumstances of the case, in particular taking into account the low amount of compensation granted.

D.  Proceedings under Article 1330 of the Civil Code (application no. 73322/13)

22.  On 10 January 2012 K.S. also lodged an injunction suit under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant company, requesting that the latter be ordered to refrain from alleging or disseminating that K.S. had been or was supposed to have been the spiritus rector of a spying operation on a confidential employees’ meeting for doctors of Klagenfurt Regional Hospital.

23.  On 5 March 2012 the applicant company requested that the proceedings be suspended until the termination of the proceedings under the Media Act (see paragraphs 12 et seq. above), arguing that the assessment of the factual elements in those proceedings, which would presumably lead to a rejection of K.S.’s application, would have a binding effect on the civil proceedings.

24.  On 19 March 2012, during a hearing, the Vienna Commercial Court (Handelsgericht) suspended the proceedings until the termination of the proceedings under the Media Act, holding that they should only be continued at one party’s request.

25.  At K.S.’s request of 1 October 2012, the Commercial Court resumed the proceedings on an unspecified date.

26.  On 19 November 2012 the Commercial Court granted the injunction, finding that the criminal conviction in the proceedings under the Media Act had binding effect on the injunction proceedings.

27.  On 29 June 2013 the Court of Appeal dismissed the applicant company’s appeal against that decision. It confirmed that, in line with the Supreme Court’s case-law, the conviction in the proceedings under the Media Act was binding, both in relation to the established elements of facts and the legal assessment. In particular, a final conviction under section 6 of the Media Act establishing that a particular media content fulfilled the objective elements of defamation would determine - in a way that was binding and not revisable in the civil proceedings - that the audience understood the media content as defamatory. Referring to the Supreme Court’s case-law on the issue, the Court of Appeal did not grant leave to lodge an ordinary appeal on points of law (ordentliche Revision) with the Supreme Court.

28.  The applicant company did not lodge an extraordinary appeal on points of law (außerordentliche Revision) with the Supreme Court.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

29.  Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation. The victim can thus claim damages from the publisher. Section 6, in so far as relevant, reads as follows:

“(1)  If the factual elements of defamation ... are established in a medium, the person affected shall be entitled to claim compensation from the owner of the medium for [any] damage sustained. ...

(2)  No claim shall lie under (1) if ...

2.  in the case of defamation

(a)  the statements published are true or

(b)  there was an overriding public interest in publication and, the requisite journalistic diligence having been observed, there were sufficient reasons to believe that the statement was true,

...

4.  a truthful quotation of a statement made by a third person is concerned and there was an overriding public interest in knowing about the statement quoted.”

30.  For the purpose of Section 6 of the Media Act, “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads as follows:

“(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 or her of behaviour contrary to honour or morality and such as to make him or her contemptible or otherwise lower him or her 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 [acting] 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 offender shall not be punished if the statement is proved to be true. In the case of the offence defined in paragraph 1 he or she shall also not be liable if circumstances are established which gave him or her sufficient reason to believe that the statement was true.”

31.  Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:

“1.  Anybody who, as a result of defamation, suffers real damage or loss of earnings may claim compensation ...

2.  The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...”

32.  It is the Supreme Court’s consistent case-law that a criminal conviction has a binding effect with regard to the convicted person in subsequent civil proceedings. In its leading decision of 17 October 1995 (1 Ob 612/95) the Supreme Court found that, even in the absence of an explicit provision stipulating the binding effect of criminal convictions, a convicted person must accept his or her conviction by a criminal court as an established fact and was not entitled to argue before a civil court that he or she had not committed the offence of which he or she had been convicted. Therefore, a conviction by a criminal court should have a binding effect with regard to the convicted person, so that nobody might argue that the facts differed from the ones already established and which had been the basis for that criminal conviction. The Supreme Court has also applied this principle to convictions under section 6 of the Media Act, which is an offence exclusively based on objective elements of fact. It held that a final conviction under that provision, finding that a media content fulfils the objective elements of fact of the offence of defamation, establishes, with binding effect for the civil courts and without being subject to further review, that the media content must be deemed defamatory (6 Ob 105/97b, 16 October 1997; 6 Ob 21/13a, 8 May 2013). The conviction becomes binding not only in respect of the finding of a criminal offence under objective aspects, but also in respect of the established elements of fact, and its legal qualification. Thus, in civil proceedings, the legal question of the meaning of the statement at issue cannot be reviewed (6 Ob 265/00i, 23 November 2000).

THE LAW

I.  JOINDER OF THE APPLICATIONS

33.  In view of the connection between the applications as regards the facts and the substantive questions that they raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

34.  The applicant company complained that its conviction in the proceedings under the Media Act and the civil courts’ subsequent injunction order, which had been exclusively based on that conviction, had violated its right to freedom of expression as provided in 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. ...

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.”

35.  The Government contested that argument.

A.  Admissibility

36.  The Government claimed that the applicant company had failed to exhaust domestic remedies in respect of the proceedings under Article 1330 of the Civil Code (application no. 73322/13) because it had not lodged an extraordinary appeal on points of law with the Supreme Court. The Government argued that, in these proceedings, the applicant company could have raised its concerns under the Convention regarding the binding effect of the final conviction under section 6 of the Media Act, which both the Commercial Court and the Court of Appeal had assumed in the light of the Supreme Court’s consistent case-law.

37.  The applicant company argued that an extraordinary appeal on points of law would have been ineffective from the outset because, in the light of the Supreme Court’s consistent case-law on the binding effect of criminal convictions on civil courts in proceedings under Article 1330 of the Civil Code, it did not have any prospects of success.

38.  The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. In this respect it reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations that a Convention right has been violated and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III; and Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

39.  Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged (see Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII with further references). Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.

40.  The Court considers that, in view of the Supreme Court’s consistent case-law relating to the binding effect of a conviction under section 6 of the Media Act in subsequent civil proceedings (see paragraph 32 above), an appeal on points of law would not have offered a reasonable prospect of success in the present case, as that binding effect does not leave any room for an individual examination of the case, or for a different outcome. The Government thus has not shown that the suggested remedy would have been effective.

41.  Consequently, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies.

42.  The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

43.  The Court considers, and that it is common ground between the parties, that the order to pay compensation to K.S. on account of defamation, and the injunction order, interfered with the applicant company’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

44.  As to the fulfilment of the conditions set out in Article 10 § 2, it was undisputed that the interference was “prescribed by law”, namely by Article 111 of the Criminal Code and section 6 of the Media Act, and Article 1330 of the Civil Code respectively, and served a legitimate aim, namely the protection of the rights and reputation of others. The Court sees no reason to hold otherwise.

45.  The parties’ arguments 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

46.  The applicant company took the position that the interference with its right to freedom of expression had not been necessary in a democratic society. In particular, it complained that the domestic courts had, based on a misinterpretation of the term spiritus rector, qualified the statement at issue as a statement of fact instead of a value judgment. The applicant company contended that the term spiritus rector had been chosen deliberately in order to describe K.S.’s particular and “complex” (vielschichtig) position in the Carinthian power structure and the public hospital sector; it did not suggest that K.S. had given specific instructions in the spying operation but rather that I.M. had known, even in the absence of such instructions, that such conduct would be appreciated. Moreover, even though the statement had referred to a mere assumption, the courts had considered that K.S. had been accused of specific defamatory conduct. The applicant company maintained its position that the statement had been a value judgment, which in their view had had a sufficient factual basis because K.S. had been associated with other spying operations, and had not been excessive in view of K.S.’s position as a powerful and important politician and the public interest in the debate.

47.  In respect of the injunction proceedings, the applicant company further complained that, because of the binding effect of the criminal conviction established in the proceedings under the Media Act, the judgments in the injunction proceedings had been based solely on formal criteria, and the courts had not examined the merits of the case. In the applicant company’s view, that binding effect had in itself violated Article 10 of the Convention because it had precluded an examination of the merits from the outset.

48.  The Government claimed that the interference with the applicant company’s right to freedom of expression had been justified, and that the domestic courts had not exceeded their margin of appreciation when assessing the statement. They argued that the article had not discussed at all K.S.’s position as a politician but instead had exclusively concentrated on the spying on an employees’ meeting at Klagenfurt Regional Hospital. Owing to the overall presentation of the article, the Court of Appeal had correctly concluded that there had been no doubt for the readers that the statement had been intended to convey the impression that K.S. had been the instigator and mastermind of that operation. It had thus considered that it had been a “specific and sufficiently concrete” reproach regarding K.S.’s behaviour, and not a political assessment of his conduct. Moreover, the Government stressed that the applicant company had expressly refrained from submitting evidence as to the truth of the allegation. Lastly, they argued that the compensation payment ordered in the proceedings under the Media Act had been very moderate in relation to the maximum amount possible and the broad dissemination of the article.

2.  The Court’s assessment

(a)  General principles

49.  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 (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III).

50.  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 of the Convention (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

51.  The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (ibid., § 43).

52.  The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness (see Verlagsgruppe News GmbH v. Austria, no. 60818/10, § 32, 25 October 2016, with further references). When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (ibid., § 33).

53.  According to the Court’s well-established case-law, a number of criteria have been found to be relevant where the right of freedom of expression is being balanced against the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109-112, ECHR 2012 and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015). Those are:

(a)  a contribution to a debate of general interest;

(b)  how well known is the person concerned and what is the subject of the report?

(c)  the prior conduct of the person concerned;

(d)  the method of obtaining the information and its veracity;

(e)  the content, form and consequences of the publication;

(f)  the severity of the sanction imposed.

54.   Lastly, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 98, ECHR 2004-XI, and Kasabova v. Bulgaria, no. 22385/03, § 58, 19 April 2011). However, even a value judgment without any factual basis to support it may be excessive (see, among many other authorities, Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).

(b)  Application of these principles to the present case

55.  The present case concerns an article, published by the applicant company in its daily newspaper and on its online news portal, about the spying on an employees’ meeting for doctors, which was ordered by the board of management. According to that article, K.S., chairperson of the supervisory board, who also put pressure on journalists in respect of critical reports on the KABEG, was “supposed to be the spiritus rector of the spying operation”.

56.  The Court is satisfied that the issue concerned a matter of public interest, namely the role of a politician in the context of a spying operation in the public health sector.

57.  Moreover, the Court notes that the statement at issue related to K.S. as a politician and public figure - at the material time the head of the KABEG supervisory board, appointed by the Regional Government, and leader of the parliamentary group of the Freedom Party of Carinthia in the Carinthian Regional Parliament - in respect of whom the limits of acceptable criticism are, in general, wider than for a private individual (see, for example, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 38, ECHR 2003-XI). However, this cannot extend to defamatory statements that lack a factual basis.

58.  The Court is not persuaded by the applicant company’s argument that the allegation that K.S. was “supposed to be the spiritus rector of that spying operation” was a value judgment. Taking into account the context in which the statement was made - an article reporting that it had been the board of management of the KABEG who had ordered the spying operation - and the complementary allegation that K.S. had also put pressure on journalists in respect of critical reports on the KABEG, the Court sees no reason to disagree with the domestic courts that the allegation of being supposed to be the spiritus rector of the operation reported must be understood by readers to suggest that K.S. played some active role in that operation. The statement must thus be regarded as a statement of fact, which is susceptible to being proved to be true. As regards the applicant company’s argument that K.S. had been associated with other spying operations in the past, the Court considers that such an alleged involvement cannot be taken as proof of the allegation relating to this particular spying operation: as the domestic courts correctly pointed out, the applicant company had explicitly abstained from submitting any evidence as to the truth of that allegation. Furthermore, the Court notes that the applicant company never even alleged, in the domestic proceedings or before the Court, that K.S. had participated in the spying operation. The Court thus sees no reason to further examine any arguments in respect of K.S.’s prior conduct relating to other spying operations. Accordingly, the Court does not see any reason to object to the domestic court’s assessment that the statement was defamatory.

59.  As regards the proportionality of the interference of the impugned measures, the Court observes that the compensation granted in the proceedings under the Media Act - amounting to EUR 3,000 in total (EUR 1,500 for each publication of the article) - appears moderate both in itself and in view of the range provided for by the Media Act.

60.  Likewise, the Court cannot share the applicant company’s view that the injunction order was disproportionate on account of the binding effect of the criminal conviction and the lack of a separate assessment by the civil courts. In the Court’s view this issue does not raise concerns because the two sets of proceedings related to the very same factual basis and parties, and the subject matter of the injunction proceedings did not require any assessment of facts or law beyond the subject matter of the proceedings under the Media Act. Moreover, the Court observes that it was the applicant company who requested the suspension of the injunction proceedings until the termination of the proceedings under the Media Act, on the very ground that the latter would have a binding effect on the injunction proceedings. In these circumstances, the Court cannot find that the binding effect of the criminal conviction on the subsequent injunction proceedings, which exclusively concerned an order to refrain from repeating in the future an allegation that had already been qualified as defamatory under the Media Act, is disproportionate.

61.  The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant company’s right to freedom of expression was necessary in a democratic society.

There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the applications admissible;

 

2.  Holds that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 23 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Anne-Marie Dougin                                                               Erik Møse
Acting Deputy Registrar                                                            President