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FIRST
SECTION
CASE OF
VERLAGSGRUPPE NEWS GMBH v. AUSTRIA
(Application
no. 76918/01)
JUDGMENT
STRASBOURG
14
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Verlagsgruppe News GmbH v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
Mr K. Herndl, ad
hoc judge,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 23 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 76918/01) 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 Verlagsgruppe News GmbH (“the applicant
company”), on 23 October 2001.
- The
applicant company was represented by Lansky and partners, a company
of lawyers practising in Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador
F. Trauttmansdorff, Head of the International Law Department at
the Federal Ministry for Foreign Affairs.
- The
applicant company alleged that it had been violated in its rights
under Article 10 of the Convention.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1. Mrs E.
Steiner, the judge elected in respect of Austria, withdrew from
sitting in the case (Rule 28). The Government accordingly appointed
Mr K. Herndl to sit as an ad hoc judge (Article 27 § 2
of the Convention and Rule 29 § 1).
- By
a decision of 8 September 2005, the Court declared the application
admissible.
- The
applicant company, but not the Government, filed further written
observations (Rule 59 § 1). The Chamber decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is the owner and publisher of the weekly magazine
News and has its registered seat in Vienna.
A. Background of the case
- In
June 2000 the Vienna City Counsel for Cultural Affairs
(Kulturstadtrat), Mr Marboe, authorised the performance of
Mr Schlingensief's “Container Action” during the
Vienna International Festival (Wiener Festwochen). The staging
took place in a container where actors figured as asylum seekers in
Austria who were successively voted out for expulsion by the public.
This container action met severe criticism by the public, inter
alia, by members of the Austrian Freedom Party (FPÖ).
- On
30 June 2000 the newspaper Kurier published an open letter to
Mr Marboe written by the Austrian artist André Heller, in
which he thanked and congratulated Mr Marboe for having allowed Mr
Schlingensief's performance. One passage of the open letter read as
follows:
“... It is not to be
expected that the Haiders, Böhmdorfers, Westenthalers,
Riess-Passers, Mölzers, and whatever else these spiritually
depraved political upstarts and their various beer-tent entertainers
may be called, will have the slightest awareness of how embarrassing,
dastardly and frequently absurd they are. ...
(German)
... Man kann von den Haiders,
Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie
diese seelenhygienisch heruntergekommenen Politemporkömmlinge
und ihre sonstigen Bierzeltanimateure heißen mögen, nicht
die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und
häufige Absurdität verlangen. ...”
- Subsequently
the FPÖ politicians quoted in this letter, except for Mr Mölzer,
filed private prosecution proceedings for defamation against
Mr Heller, which they withdrew later on.
- On
7 September 2000 the applicant company published the following
article on page 46 of its issue no. 36/00:
“Lawsuit against André Heller
FPÖ grandees sue critical artist André
Heller. They are not 'spiritually depraved', they maintain.
Böhmdorfer is suing Heller. He is not alone,
though: Jörg Haider, Peter Westenthaler and Susanne
Riess-Passer have all launched a powerful attack on André Heller
with the assistance of the law firm Böhmdorfer-Gheneff
Rechtsanwälte KEG.
The reason is that the artist André Heller, a
critic of the Government, wrote an 'open letter' in the Kurier
lavishing praise on the Vienna city councillor for cultural affairs,
Peter Marboe (ÖVP). Shortly before this, however, Peter
Marboe had allowed Schlingensief's provocative container to be
installed outside the Vienna State Opera House as a spectacle for the
International Festival – despite bitter opposition from the
Kronen Zeitung, a furious Vienna FPÖ and the
Minister of Justice, Dieter Böhmdorfer, who threatened
prosecution.
André Heller wrote in the Kurier at
the time: 'It is not to be expected that the Haiders, Böhmdorfers,
Westenthalers, Riess-Passers, Mölzers, and whatever else these
spiritually depraved political upstarts and their various beer-tent
entertainers may be called, will have the slightest awareness of how
embarrassing, dastardly and frequently absurd they are' (end of
quotation). Böhmdorfer & Co. will not stand for this
humiliation. They have instructed Böhmdorfer-Gheneff KEG, with
which the Minister of Justice severed ties in March, to file a
peppery lawsuit against Mr Heller.
'Dastardly'. In the private lawsuit it was stated
that the allegations made in Mr Heller's letter were 'untrue'
and that the 'unsubstantiated accusation' that Böhmdorfer
& Co. were “dastardly” amounted to 'what
would appear to be an absolutely classic case of defamation within
the meaning of the Criminal Code'. The same applied to the
expression 'spiritually depraved political upstarts'.
Huberta Gheneff-Fürst, now the sole partner of the
law firm to which the current Minister of Justice Mr Böhmdorfer
still belonged six months ago, has called for André Heller to
be given 'punishment commensurate with his guilt' as the
person responsible for the deceitful smear.
Last stop Maurer. As has happened in a number of
similar cases, André Heller could be acquitted of defamation
at first instance, since an artist really should have the right to
express strong criticism. But at final instance Judge Ernest Maurer,
known to be FPÖ-friendly, could come into the frame. Ernest
Maurer was appointed to the Austrian Broadcasting Corporation's board
of governors by the FPÖ, and that creates at least an appearance
of bias.
Suspicion. Even the President of the Judges'
Association, Barbara Helige, is somewhat astonished at Ms
Gheneff-Fürst, especially as the lawyer persists in retaining
'Böhmdorfer' in the law firm's name: 'If a former partner of the
current Minister of Justice is stressing how important it is for
Böhmdorfer's name to appear on the law firm's notepaper, the
uninformed observer will suspect there is something political behind
it.'
Indeed.”
Above
the article a photo showing Mr Westenthaler standing between
Mr Haider and Mr Böhmdorfer was published.
B. Proceedings for forfeiture
- Mr
Westenthaler, one of the FPÖ politicians concerned, filed a
request for forfeiture of the applicant company's issue no. 36/00 of
7 September 2000.
- On
9 October 2000 the St. Pölten Regional Court (Landesgericht),
after having held a hearing, granted this request pursuant to
section 33 § 2 of the Media Act and ordered the
applicant company to pay the costs of the proceedings.
- The
court noted in its reasoning that the quoted passage consisted of
value statements which insulted the plaintiff within the meaning of
Article 115 of the Criminal Code (Strafgesetzbuch). The
fact that the article merely quoted the impugned statements and had
reported in a neutral manner about the criticism at issue was
irrelevant for the proceedings under section 33 of the Media
Act. In the light of Article 10 of the Convention, the court
nevertheless expressed doubts as to the constitutionality of
section 33 of the Media Act as it did not provide for protection
of a correct quotation of an incriminated passage at stake in pending
defamation proceedings. Thus, in the court's view, comprehensive
reporting and criticism about pending defamation proceedings would be
rendered practically impossible.
- The
applicant company appealed, arguing that the forfeiture infringed its
right to freedom of expression under Article 10 of the Convention.
- On
4 April 2001 the Vienna Court of Appeal (Oberlandesgericht)
upheld the Regional Court's decision in essence. The court first
noted that the article showed by its appearance and structuring that
it did not intend neutral reporting. The court referred in this
regard to the repeated hints to Mr Böhmdorfer, the
allusions to the political motivations and misuse of the law-suits
and the passage concerning the outcome of the defamation proceedings
before the Court of Appeal, which in particular expressed that an
artist should have the right to sharp criticism. The court further
noted that the passage at issue had to be assessed in the light of
the article as a whole. In this regard, the court found that the
reporting style used was typical for News, namely the use of
special layout, highlighting certain words in bold or italics and
adding pictures etc., which aimed at influencing the reader
unconsciously. The first part of the article, including the passage
at issue, might still be regarded as objective reporting when being
assessed isolated. Furthermore, however, the subtitle of the
subsequent passage, namely the word “dastardly” written
in bold, caught the reader's eye and focused his mind in an
unambiguous direction, incriminating the plaintiff. Even though the
subsequent passage merely dealt with the contents of the law-suits,
it conveyed to the reader that the plaintiff was in fact dastardly as
some words were emphasised in italics and thereby attained
independent significance. The court concluded that the article had
not limited itself in objective citation. The first instance court
had falsely classified the article as reporting on court proceedings
as such reporting presumed the existence of court trials whereas in
the present case there had only been a private prosecutors' action.
When balancing the interests involved, i.e., the right to freedom of
expression of the applicant company on the one hand, and the interest
of the plaintiff not to be defamed, on the other, the court found in
favour of the latter. It noted that even accepting that there was a
public interest in the subject matter at issue, the allegation
against the plaintiff, namely that he had a dastardly character
without having provided any factual basis for this assertion, defamed
him within the meaning of Article 111 of the Criminal Code and was
worthless information for public debate. Therefore, it exceeded the
limits of lawful criticism under Article 10 of the Convention. Thus,
the interference with the applicant company's right to freedom of
expression, namely the forfeiture of the above issue, was necessary
and also proportionate to the aim pursued. This all the more as
forfeiture concerned in general only older issues with no relation to
the present actuality and with merely historical interest.
- Finally,
the Court of Appeal did not share the Regional Court's concern as
regards a possible unconstitutionality of section 33 of the Media
Act. The court noted that, in any way, the criteria set up under
Article 10 of the Convention had to be considered when assessing
whether or not a statement concerned established an offence within
the meaning of Article 111 of the Criminal Code.
- This
decision was served on the applicant company's lawyer on 26 April
2001.
II. RELEVANT DOMESTIC LAW
- Article
111 of the Criminal Code (Strafgesetzbuch) provides:
“1. Anyone who in such a way that it
may be perceived by a third party accuses another of possessing a
contemptible character or attitude or of behaviour contrary to honour
or morality and of such a nature as to make him contemptible or
otherwise lower him in public esteem shall be liable to imprisonment
not exceeding six months or a fine...
2. Anyone who commits this offence in a
printed document, by broadcasting or otherwise in such a way as to
make the defamation accessible to a broad section of the public shall
be liable to imprisonment not exceeding one year or a fine...”
- Article
115 of the Criminal Code provides:
“1. Anyone who, in public or in the
presence of several others, insults, mocks, mistreats or threatens to
mistreat a third person, shall be liable to imprisonment not
exceeding three months or a fine ... unless he is liable to a more
severe penalty under another provision...”
- A
specific sanction provided for by the Media Act is forfeiture
(Einziehung) of the publication concerned (section 33).
Forfeiture may be ordered in addition to any normal sanction under
the Criminal Code (section 33 § 1).
- Forfeiture
can also be ordered in separate so-called “objective”
proceedings for the suppression of a publication, as provided for
under section 33 § 2 of the Media Act, by virtue of which:
“Forfeiture shall be ordered in separate
proceedings at the request of the public prosecutor or any other
person entitled to bring claims if a publication in the media
satisfies the objective definition of a criminal offence and if the
prosecution of a particular person cannot be secured or if conviction
of such person is impossible on grounds precluding punishment, has
not been requested or such a request has been withdrawn...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained under Article 10 of the Convention that
the Austrian courts' decision ordering the forfeiture of its issue
no. 36/00 of 7 September 2000 infringed its right to freedom of
expression.
Article
10, as far as relevant, 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.”
A. The parties' submissions
- The
applicant company argued that the open letter of Mr Heller fell under
the protection of Article 10 of the Convention. It was part of a
debate in the media concerning cultural and educational policy which
included fundamental political aspects, included true statements of
fact and value-judgments based on a factual basis and addressed,
inter alia, Mr Westenthaler as leading politician of the
FPÖ party. Consequently, the quotation of parts of this letter
also enjoyed the protection of Article 10. In addition, the applicant
company did not make the objectionable statements itself but
restricted itself to a careful quotation. As criminal proceedings
against Mr Heller were at that time pending, this information was of
public interest. The structure and wording of the article at issue
were neutral. Reporting about pending court proceedings could only be
informative if also the subject of these proceedings was mentioned.
The domestic courts had interpreted the article at issue and the
applicant company's possibility of justifying the quotation of the
impugned statements narrowly and in breach with Article 10 of the
Convention. The mere fact that a statement had to be considered as an
offence within the meaning of the relevant legislation did not imply
that a report about such a statement amounted ipso iure to an
offence against a person's honour. The wording of section 33 of the
Media Act was not in conformity with the requirements of Article 10
of the Convention as it did not provide for protection of a correct
quotation. The measure at issue constituted a punishment which nature
remained unchanged irrespective of the severity of its consequences.
It had suffered material damage from the order of forfeiture.
- The
Government argued that according to the “quotation case-law”
of the Austrian courts, the publication of a statement which
satisfies the definition of an offence may lead to sanctions against
the medium concerned unless there is any objective reason, such as
e.g. the protection by a basic right, justifying such statement. In
the present case, having carefully weighed the freedom of expression
against the protection of the reputation of others, the second
instance court set out comprehensively the arguments in favour of the
application of section 33 of the Media Act. It rightly considered
that the statement “spiritually depraved” amounted to an
offence and violated the concerned person's right to reputation.
Referring to case-law of the Court of Appeal, the Government asserted
that the correct quotation of an insult of one person by another
person was protected by Article 10 of the Convention and did not
justify forfeiture. In the present case, however, the applicant
company had not reported about the pending defamation proceedings in
a neutral way but had identified itself with the content of the
quoted statements. The Government referred in this regard to the
Court of Appeal's findings as regards the structure and style of the
article and, furthermore, to the article's subtitle which wording
between the lines in their opinion called the rejection of the
reproach of being “spiritually depraved” into question. A
victim's right would be almost completely void without an adequate
protection against abuse of quotations, if a medium was free to
publish and add to defamation by third persons. The applicant company
had not been deprived of the possibility to inform the public about
the fact that criminal proceedings against Mr Heller were pending.
Finally, the forfeiture was principally a safeguarding measure
containing elements of minor punishment. It appeared proportionate as
most of the issues of the weekly magazine had, in any way, already
been published. The applicant company had not sufficiently
substantiated the alleged damage resulting from the forfeiture.
B. The Court's assessment
- The
Court recalls at the outset that its task is not to review the
relevant law and practice in abstracto, but to determine
whether the manner in which they were applied to or affected the
applicant gave rise to a violation of the Convention (see Karhuvaara
and Iltalehti v. Finland, no. 53678/00, § 49, ECHR
2004 X, with further references). In order to assess whether
there has been a violation of Article 10 of the Convention, the Court
will therefore examine the standpoint of reasoning adopted by the
second instance court which ordered forfeiture as it found that the
interests of Mr Westenthaler overweighed those of the applicant
company in its right to freedom of expression.
- The
Court finds, and this was common ground between the parties, that
there was an interference with the applicant company's right to
freedom of expression, as guaranteed by Article 10 § 1 of the
Convention. The interference at issue had its legal basis under
section 33 of the Media Act and pursued the legitimate aim of
protecting the reputation and rights of others.
- The
parties' arguments concentrated on the necessity of the interference.
The Court refers to the general principles relating to the freedom of
the press and the question of assessing the necessity of an
interference with that freedom, as set out in the summary of its
established case-law in the case of Fressoz and Roire v. France
([GC], no. 29183/95, § 45, ECHR 1999 I). In
accordance with its case-law, the Court will examine whether the
reasons adduced by the domestic courts were “relevant and
sufficient” and whether the interference was proportionate to
the legitimate aim pursued. In so doing the Court will have regard to
the domestic courts' margin of appreciation.
- In
the present case, the article at issue included extracts of
Mr Heller's letter calling several FPÖ politicians, among
them Mr Westenthaler, “spiritually depraved political
upstarts” who “have [not] the slightest awareness of how
embarrassing, dastardly and frequently absurd they are”. The
domestic courts ordered the forfeiture as they considered that these
statements amounted to insults and defamation. The second instance
court, unlike the first instance court, further argued that the
forfeiture was necessary because the article had adopted, at least in
part, the content of the quotation.
- The
Court notes at the outset that the statements concerning inter
alia Mr Westenthaler might certainly be considered as polemical.
The Court finds, however, that it is of particular relevance in the
present case that the article did not make the objectionable
statements itself but assisted in their further dissemination by
quoting them. At this time the impugned statements had in fact
already been widely disseminated as another newspaper had published
Mr Heller's open letter some months ago. The applicant company quoted
this letter in the context of its reportage about the then pending
defamation proceedings against Mr Heller which, involving several FPÖ
politicians on the one hand and a well-known artist criticising them
publicly on the other hand, was certainly a subject of public
interest. The Court further recalls that the press' duty to impart
information and ideas on all matters of public interest extends to
the reporting and commenting on court proceedings (see, mutatis
mutandis, News Verlags GmbH & Co.KG v. Austria, no.
31457/96, § 56, ECHR 2000 I, with further references). Not
only do the media have the task of imparting such information and
ideas: the public has a right to receive them. This is all the more
so where, like in the present case, the persons involved i.e.
well-known politicians, have laid themselves open to public scrutiny
(see mutatis mutandis Scharsach and News
Verlagsgesellschaft v. Austria, no. 39394/98, § 38,
ECHR 2003 XI). The Court endorses the applicant company's and
the first instance court's argument, that comprehensive reporting
about the defamation proceedings at issue would have been
considerably restricted without the possibility to inform the readers
about the very subject of these proceedings .
- In
these circumstances, the Court cannot find that the reproduction of
the impugned extracts of Mr Heller's letter was in itself a valid
ground for the forfeiture at issue (see mutatis mutandis
Sunday Times v. the United Kingdom (no. 2), judgment of
26 November 1991, Series A no. 217, § 55). On the contrary,
due to the fact that the publication of Mr Heller's statements
contributed to the discussion of a subject of public interest and
addressed well-known politicians, particularly strong reasons had to
be put forward in order to explain any punishment of the applicant
company for assisting in their dissemination (see mutatis mutandis
Thoma v. Luxembourg, no. 38432/97, § 62,
ECHR 2001 III, with further references).
- The
second instance court found that the article's report lacked
neutrality and referred in this regard to the repeated hints to the
Minister of Justice, Mr Böhmdorfer, whose former law-firm
represented the plaintiffs in the defamation proceedings, the
article's allusions to political motivations of the law-suits and its
passage concerning the outcome of the defamation proceedings before
the second instance court, which in particular, expressed that an
artist should have the right to sharp criticism. It next noted that
the quoted passage had to be assessed in the light of the article as
a whole. While the first part of the article, including the passage
at issue, might still be regarded as objective reporting when
assessed isolated, the following paragraph, namely by its layout,
suggested to the reader that Mr Westenthaler, as stated in the
quoted passage, was in fact dastardly.
- The
Court cannot find that these are “particularly strong reasons”
within the meaning of the above cited case-law. It is certainly true
that the article at issue reflected a rather critical approach
towards the defamation proceedings. This in itself cannot, however,
justify the conclusion that the article identified and adopted the
content of the impugned statements of the quoted passage. In this
regard the Court further recalls that a general requirement for
journalists systematically and formally to distance themselves from
the content of a quotation that might insult or provoke others or
damage their reputation is not reconcilable with the press's role of
providing information on current events, opinions and ideas (see
Thoma v. Luxembourg, cited above, § 64 ). The
Court finds that in the present case the article remained within the
limits of acceptable comment on court proceedings.
- Turning
to the second instance court's remaining arguments, the Court notes
that the paragraph following the quoted passage cited extracts of the
law-suit's wording which challenged precisely the impugned passage.
This paragraph was headed by one of the words subsequently cited,
namely the word “dastardly” (“niederträchtig”)
published between quotation marks and printed in bold. The Court does
not find that this form of presentation suggested any message beyond
quoting the actual wording of Mr Heller's statement and the
subsequent law-suit.
- In
any event, the Court points out that the quoted passage was clearly
distinguishable from the remainder of the article as it was published
between quotation marks, printed in italic letters and finished off
with: “end of quotation” in brackets. No further comment
on Mr Westenthaler's character was made in the article or its
headings. In these circumstances, the Court cannot accept the
argument that the article adopted Mr Heller's criticism as its
own.
- Thus,
the domestic courts restricted the applicant company's freedom of
expression while relying on reasons which cannot be regarded as
“relevant” and “sufficient”. They therefore
went beyond what would have amounted to a “necessary”
restriction on the applicant company's freedom of expression. The
Government's argument as to the limited nature of the interference is
therefore not decisive.
- It
follows that there has been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant company did not submit any claim for damages. However,
under the head of costs and expenses, it claimed reimbursement of Mr
Westenthaler's domestic proceedings costs which it was ordered to
pay. The note of fees accompanying this claim put these costs at
1,956.64 euros (EUR) including value-added tax (VAT).
- The
Government did not make any comment on this claim.
- The
Court finds that this claim should be considered under the head of
pecuniary damage. Having regard to the direct link between the
applicant company's claim and the violation of Article
10 found by the Court, it awards the applicant company the
full amount of EUR 1,956.64. This amount includes VAT.
B. Costs and expenses
- The
applicant claimed reimbursement of its costs of the domestic
proceedings and the Strasbourg proceedings. These claims were
substantiated in the amount of EUR 1,911.69 including VAT, as regards
the domestic and EUR 7,010.60, including VAT, as regards the Court
proceedings.
- The
Government contended that the applicant company's claim as regards
the costs of the Strasbourg proceedings was excessive and that,
according to the Austrian Autonomous Remuneration Guidelines for
Lawyers, a maximum amount of EUR 1,832.04 should be granted.
- As
to the costs of the domestic proceedings, the Court finds that they
were actually and necessarily incurred and also reasonable as to
quantum. It therefore awards the full amount claimed, namely
EUR 1,911.69. This amount includes VAT. The costs of the
Convention proceedings were also necessarily incurred. Having regard
to the sums awarded in comparable cases (see, for instance,
Öllinger v. Austria, no. 58547/00, § 59,
29 June 2006) and making an assessment on an equitable basis, the
Court awards EUR 3,500. This amount includes VAT.
- Thus,
the Court awards a total of EUR 5,411.69 including VAT under the head
of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(i) EUR
1,956.64 (one thousand nine hundred fifty six euros and sixty four
cents) in respect of pecuniary damage;
(ii) EUR
5,411.69 (five thousand four hundred eleven euros and sixty nine
cents) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant
company's claim for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following concurring opinions are
annexed to this judgment:
(a) Concurring opinion of Mr Jebens;
(b) Concurring
opion of Mr Herndl.
CONCURRING OPINION OF JUDGE JEBENS
I
agree with the majority that the forfeiture of the 7 September 2000
issue of the weekly magazine News was in violation of Article
10 of the Convention. However, I do not fully share the majority's
reasoning on two points. I will discuss this in the following.
First,
the only justifiable reason for finding a violation of Article 10 in
this case is, in my opinion, the fact that the applicant company had
quoted the statement previously expressed by Mr Heller, in its
reportage about a pending defamation case against him. This is so,
because it transpires from the Court's case law that the privileged
position of newspapers is based on “the contribution of the
press to discussion of matters of public interest“ (Jersild v.
Denmark, judgment of 23 September 1994, A 298, § 35).
Therefore, if the objectionable statements in the article in the
newspaper Kurier were not in themselves protected by Article
10, neither the fact that the magazine had not made them, but
“assisted in their further dissemination by quoting them”
nor the fact that the statements had “already been widely
disseminated”, as argued by the majority in para 30, is in my
opinion relevant with regard to Article 10. By emphasizing these
factual elements, the majority goes beyond what in my opinion is
necessary in order to protect the role of the press.
Second,
with regard to the critical approach in the News' coverage of
the defamation proceedings, I would like to make another
clarification as to my own view. I agree with the majority that “the
article remained within the limits of acceptable comment on court
proceedings”, as argued in para 33. However, regard must
in this respect be had to the nature of the statements. When
evaluating the News' coverage of the defamation proceedings
against Mr Heller, it is in my opinion relevant that the
statements which were quoted in the article were negative value
judgments, not false factual allegations. This is so, because it must
be assumed that the newspaper's rather critical approach to the
defamation proceedings did not create additional damage to the
persons described, as opposite to the situation if the quoted
statements had contained factual allegations. Distinguishing between
different types of allegation in this respect is in my opinion fully
consistent with the press' role of providing information, as
described in the Thoma v. Luxembourg judgment, cited
above, § 64.
CONCURRING OPINION OF JUDGE HERNDL
The
purpose of this concurring opinion is to lay emphasis on two points.
- In
para. 30 of the judgment the Court stresses the fact that the
incriminated article published in the weekly magazine NEWS on
7 September 2000 “did not make the objectionable
statements itself but assisted in their further dissemination by
quoting them.”
At
the time No. 36/2000 of NEWS was issued, the impugned statements had
already been widely disseminated as another newspaper had printed
Mr Heller's “open letter” several months earlier.
Accordingly, and in line with the Court's established jurisprudence
(see the leading case, i.e. Observer and Guardian v. the United
Kingdom, judgment of 26 November 1991, Series A no.
216, p. 33 ss.; also the Weber v. Switzerland,
judgment of 22 May 1990, Series A no. 177, p. 22: the
incriminated relevant information had already become “public
knowledge”), the reproduction of the impugned extracts of the
“open letter” in the framework of an article published by
NEWS cannot be regarded as a valid ground for the decisions of the
Austrian courts as regards the forfeiture of issue no. 36/2000. There
was indeed a violation of Article 10 of the Convention.
- The
content of Mr Heller's “open letter”, however, and the
choice of the incriminated words should not easily be qualified as a
simple value judgment criticising as it does certain politicians. The
phraseology used by the author was apparently and primarily meant to
insult those persons, and as such – as a personal insult
couched in demeaning words like “seelenhygienisch
heruntergekommen” (spiritually depraved) and “niederträchtig”
(dastardly) – should not enjoy the protection of Article 10
of the Convention. As judges Matscher and Thór Vilhjálmsson
stated in their dissenting opinion in the Oberschlick (no. 2) case,
“an insult can never be a value judgment” (Oberschlick
v. Austria (no. 2), judgment of 1 July 1997, Reports
of Judgments and Decisions 1997 IV, p.1279). Furthermore, in
the latter case the Court was careful in tying its opinion on the
proportionality (or rather the disproportionality) of the reaction to
the insulting word “Trottel” (idiot) to the indignation
knowingly aroused by the speech of a polititcian (loc. cit. para.
34). Would the Court have said the same if, as in the present case,
the insulting words had been contained in an “open letter”
congratulating the competent authority for having allowed the
performance of somewhat spectacular actions which met with severe
criticism by the public? (see para. 8 above).
