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FIRST
SECTION
CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA (No. 2)
(Application
no. 10520/02)
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,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K.
Hajiyev,
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. 10520/02) 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”), on 27 February 2002.
- The
applicant 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 of Foreign Affairs.
- The
applicant alleged a violation of its right to freedom of expression
as guaranteed by 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 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
parties did not file observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is a limited liability company with its registered seat in
Vienna. It is the owner and publisher of the weekly magazine News.
- On
2 November 2000 the applicant published an article in News in
which it reported about pending investigations on suspicion of large
scale tax evasion against Mr G., the managing director of a
well-known enterprise producing pistols. The article was accompanied
by a picture of Mr G.
- The
report informed the reader that Mr G.'s premises had been searched in
the early hours of 31 October. He was suspected of having evaded
taxes of up to 500 million Austrian Schillings (more than 36 million
euros). The article stated that News was in the possession of
numerous documents (letters from Mr G.'s lawyers, a court file from
Luxembourg, costs calculations and lists of clients of the G.
company, etc.) concerning this suspicion which it claimed to have
obtained through its own intense research. The most important
documents were letters from Mr G.'s lawyers from which it followed
that an attempt to murder Mr G. had taken place in Luxembourg in
1999, which had not come to the attention of the Austrian authorities
or of the media at the time. The attempt had possibly been made at
the instigation of one of Mr G.'s business partners who, according to
his lawyer, had acted as a trustee for him. The article then assumed
that the attempt was somehow linked to Mr G.'s network of companies
which had been scrutinised by the tax authorities. It quoted an
anonymous tax official as saying that according to the investigations
dubious companies with a seat abroad had issued invoices for
“organisational services” to the G. company in order to
reduce its gains in Austria. Still according to that tax official the
complex structure of interrelated companies had been chosen to
dissimulate the fact that Mr G. was their owner and to avoid the
legal consequences of that fact. The article finally said that Mr G.
also had close links with the Austrian Freedom Party (Freiheitliche
Partei Österreichs), of which it gave a few examples, and
that thus, the case also had a political dimension.
- Subsequently
Mr G. (“the claimant”) brought proceedings under Section
78 of the Copyright Act (Urheberrechtsgesetz) against the
applicant company, requesting that the latter be prohibited from
publishing his picture in connection with reports both on the pending
tax evasion proceedings against him and on the attempted murder.
- On
28 December 2000 the Vienna Commercial Court (Handelsgericht),
granting the request in part, issued a preliminary injunction
(einstweilige Verfügung) against the applicant company
prohibiting it from publishing a picture of the claimant in the
context of reports on charges of tax evasion against him, in so far
as he was not described as a suspect, but as having committed the
offence, until a final decision would be taken in the main injunction
proceedings.
- The
court noted that, when assessing whether a person was entitled to
protection of his or her picture under Section 78 of the Copyrights
Act in the context of criminal proceedings, the respective interests
had to be balanced in the light of the criteria developed in Sections
7a and 7b of the Media Act (Mediengesetz). The court noted
that the applicant was a business magnate. His enterprise was the
market leader in equipping police forces with pistols. Although the
claimant was well-known in professional circles he was not known to
the public at large and his picture had only been published in arms
producers' magazines so far. Nevertheless, the subject-matter, namely
tax evasion proceedings pending against an industrial magnate whose
enterprise was well-known and prestigious in Austria, was of public
interest. Referring to Section 7a § 2 (2) of the Media Act, the
court considered that the public interest in receiving such
information outweighed the claimant's interest in the protection of
his identity. The court concluded that reporting on this topic and
publishing the claimant's picture was in principle allowed, as long
as it did not violate his right to be presumed innocent (Section 7b
of the Media Act) as was the case for the passage of the article
quoting the tax official which described the suspicion against Mr G.
as if it were already proven.
- Referring
to Section 7a § 2 (1) of the Media Act, the court dismissed the
claimant's request that the applicant company be prohibited from
publishing his picture in the context of reports on the attempted
murder of which he had been the victim. It found that there was a
public interest in the reporting which was not outweighed by the
claimant's interest in the protection of his identity, since the
report did not interfere with his strictly private life or lead to
his public exposure.
- On
26 April 2001 the Vienna Court of Appeal (Oberlandesgericht)
upheld this decision.
- On
10 July 2001 the Supreme Court (Oberster Gerichtshof),
allowing the claimant's appeal in part, widened the scope of the
preliminary injunction to the extent that the applicant company was
prohibited from publishing any pictures of the claimant in the
context of reports on the tax evasion proceedings pending against
him, irrespective of the accompanying text.
- The
court found that the lower courts had failed to take into account the
nature of the offence which was at stake, when applying the
above-mentioned provisions of the Media Act. It noted, in particular,
that the claimant was a suspect of tax evasion, which was a lesser
indictable offence (Vergehen), within the meaning of Section
7a § 2 (2) of the Media Act, in which case the claimant's
legitimate interests were injured by a disclosure of his picture. In
such cases, the claimant's interest in a protection of his picture
prevailed over the public interest in its publication.
- Even
if weighing the respective interests in the circumstances of the
case, the claimant's interest not to have his picture published in
the context of reports on pending tax evasion proceedings against him
outweighed the public interest to receive such information. In that
context the court noted in particular that the investigations for tax
evasion were not public and the officials of the tax authorities were
bound by the fiscal secret. Thus, there was no public interest in
receiving such information together with the picture of the suspect,
irrespective of the manner in which the applicant had obtained the
information. Even if the applicant had managed to obtain information
on the tax evasion proceedings without inciting officials to breach
the fiscal secret, the information was meant to be secret and there
was no legitimate public interest in receiving it.
- The
Supreme Court's decision was served on the applicant on 5 September
2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Copyright Act
- 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.”
- Starting
with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302)
the Supreme Court has consistently held that, in the context of
reports on criminal proceedings, Section 78 pf the Copyright Act has
to be interpreted in the light of Section 7a of the Media Act.
B. The Media Act
- The
relevant provisions of the Media Act read as follows:
Section 7a
“(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 14,535 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 victim's advancement. ...”
Section 7b
“(1) Where a person who is suspected of
having committed a punishable offence but has not been finally
convicted is portrayed in a medium as guilty, or as the offender and
not merely a suspect, the victim shall have a claim in damages
against the owner of the medium (publisher) for the injury suffered.
The award of damages shall not exceed 14,535 euros; additionally,
Section 6 (1), second sentence, shall apply. ...”
- Pursuant
to Article 17 of the Criminal Code (Strafgesetzbuch) lesser
indictable offences are all offences punishable with less than three
years' imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the preliminary injunction issued
by the Supreme Court violated its right to freedom of expression. It
relied on Article 10 which, so 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 contested the necessity of the interference. It asserted
that the scope of the preliminary injunction as formulated by the
Supreme Court went beyond what was necessary to protect Mr G.'s
rights. The lower instances had only prohibited the publication of Mr
G.'s picture in the context of the tax evasion proceedings against
him if accompanied by any text violating the presumption of
innocence. In contrast, the Supreme Court considered that the duty to
respect the fiscal secret excluded any public interest in receiving
the information at issue. Consequently, it had failed to weigh the
conflicting interests. Moreover, the Supreme Court considered it
irrelevant whether or not the applicant had obtained the information
without inciting tax officials to breach the fiscal secret. Such an
interpretation was contrary to the Court's approach in Fressoz and
Roire v. France [GC], no. 29183/95, ECHR 1999 I.
- Further,
the applicant maintained that the claimant was a public figure. He
was one of the leading business magnates in Austria. Domestic and
international media had reported repeatedly on the success of the
claimant's enterprise and the pistol carrying his name. Thus, his
name and person had become known to the public at large. As the
G.-pistol was widely used by police forces, for instance in Austria,
Germany and the United States, the claimant had contacts with
politicians and police authorities. Moreover, he entertained close
links with the Austrian Freedom Party. It followed that the report
about the criminal proceedings for tax evasion against him was of
public interest. In short, the prohibition to publish his picture in
the context of the tax evasion proceedings against him, irrespective
of the accompanying text, was disproportionate.
- The
Government's submissions also concentrated on the necessity of the
interference. They pointed out that Austrian law required a weighing
of the interest of the person concerned in the protection of his or
her picture and the public interest in its dissemination. The courts
had duly carried out this balancing of interests.
- In
the Government's view, the present case had to be distinguished from
News Verlags GmbH & Co. KG v. Austria (no. 31457/96, ECHR
2000 I). In that case the person whose picture had been
published had entered the public scene by voicing extremist political
views. His picture was published in the context of the trial against
him relating to a serious, politically motivated crime, namely
participation in a series of letter bomb attacks. In contrast, the
claimant in the present case was the managing director of a renowned
enterprise who was known in business circles but was not a public
figure. The offence he was suspected of, namely tax evasion was
classified as a lesser indictable offence and the applicant had
obtained the information about these proceedings by a breach of the
fiscal secret. In contrast to Fressoz and Roire (cited above)
the information at issue was not accessible to the public.
- Finally,
the Government contended that the interference was also proportionate
as the applicant was only prohibited from publishing Mr G.'s picture
in the context of reports on the proceedings for tax evasion against
him. It was not prevented from reporting about the proceedings
themselves. Nor was it prohibited from publishing Mr G's picture in
the context of reporting on the attempted murder aimed at him.
B. The Court's assessment
- The
present case is not concerned with a restriction on the contents of
reporting but with the prohibition to accompany a report with a
picture of the person concerned. The Court recalls that Article 10
protects not only the substance of ideas and information but also the
form in which they are conveyed (see, among other authorities, News
Verlags GmbH & Co. KG, cited above, § 39 with a
reference to Jersild v. Denmark, judgment of 23 September
1994, Series A no. 298, pp. 23-24, § 31). Furthermore, the Court
has explicitly recognised that freedom of expression extends to the
publication of photos (Von Hannover v. Germany, no. 59320/00,
§ 59, ECHR 2004 VI). Consequently, the preliminary
injunction at issue constituted an interference with the applicant
company's right to freedom of expression. This is not disputed by the
parties.
- It
is not in dispute either that the interference had a basis in
domestic law, namely Section 78 of the Copyrights Act. It served a
legitimate aim, namely the protection of the reputation or 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 reporting on issues of general interest 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 Fressoz and
Roire (cited above, § 45).
- In
accordance with this 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 courts of first and second instance only
prohibited the publication of Mr G.'s picture in the context of
articles on the criminal investigations concerning tax evasion if the
accompanying text violated the presumption of innocence. In contrast,
the Supreme Court prohibited the publication of G.'s picture in the
context of articles relating to the said investigations in absolute
terms.
- As
it did in comparable cases, the Court will have regard to the
following elements: the position of the applicant, the position of Mr
G. who brought the proceedings and the nature and subject matter of
the article at issue.
- The
applicant is the owner and publisher of a widely read weekly. In that
connection the Court reiterates its constant case-law according to
which the press fulfils an essential function in a democratic
society. Although the press must not overstep certain bounds, in
particular in respect of the reputation of the rights of others its
duty is nevertheless to impart – in a manner consistent with
its obligations and responsibilities – information and ideas on
all matters of public interest (see News Verlags GmbH & Co.
KG, cited above, § 55).
- Mr
G. is a business magnate. The domestic courts noted that his picture
was not known to the public at large but had only been published in
professional journals so far. Even if Mr G. has not sought to appear
on the public scene, the Court considers that a business magnate, who
owns and manages one of the country's most prestigious enterprises,
is by his very position in society a public figure.
- Furthermore,
the Court observes that the article at issue reported on a matter of
public interest, namely on pending investigations on suspicion of tax
evasion against Mr G., informing on the recent search of his premises
and giving some information on the network of his companies and the
alleged practices of tax evasion. It also indicated that there could
be a link between this business network and an attempt to murder Mr
G. which had taken place the year before. Articles of this kind are
capable of contributing to a public debate on the integrity of
business leaders, on illegal business practices and the functioning
of the justice system in respect of economic offences.
- The
courts of first and second instance only prohibited the publication
of Mr G.'s picture in the context of articles on the criminal
investigations concerning tax evasion if the accompanying text
violated the presumption of innocence, while the Supreme Court
prohibited the publication of Mr G.'s picture in the context of
articles relating to these investigations in absolute terms. The
Supreme Court relied mainly on two arguments to support its absolute
prohibition to publish Mr G.'s picture. Firstly, that tax evasion was
not a crime but a lesser indictable offence and secondly that the tax
investigations were covered by the fiscal secret.
- As
to the nature of the offence, Court has already held that there may
be good reasons for prohibiting the publication of a suspect's
picture in itself depending on the nature of the offence at issue and
the particular circumstances of the case (see, News Verlags GmbH &
Co. KG, cited above, § 58). Nevertheless, the Court is
not convinced by the Supreme Court's approach in the present case. It
interpreted Section 78 of the Copyright Act in the light of 7a §
2 (2) of the Media Act, concluding that the legitimate interests of a
person whose picture had been published in connection with the
suspicion of having committed an offence were in any event violated
if the offence at stake was merely a lesser indictable offence. The
Court notes that, under Austrian law, lesser indictable offences are
all criminal offences punishable with up to three years' imprisonment
(see paragraph 22 above). This category therefore includes offences
of a serious nature, such as in the present case, tax evasion of a
very substantial amount.
- The
Supreme Court's approach excluded any weighing of interests between
the public interest to have the information on the proceedings for
tax evasion pending against Mr G. accompanied by his picture against
the latter's interest to have his identity protected. However, in
cases in which the Court has had to balance the protection of a
person's picture or other aspects of “private life”
within the meaning of Article 8 of the Convention against freedom of
expression as guaranteed by Article 10, it has always stressed the
contribution made by the photos or articles published in the press to
a debate of general interest (Von Hannover, cited above, §
60, with further references). The Court considers that there is
little scope for an absolute prohibition to publish a public person's
picture in an article contributing to a public debate (see Von
Hannover, cited above, §§ 64-66, where the Court
emphasised that the photos at issue and the accompanying text did not
contribute to any debate of general interest; see also, Sciacca v.
Italy, no. 50774/99, §§ 27-28, ECHR 2005..., where the
Court noted that the suspect whose picture had been published was not
a public figure). The present case, as the Court has already noted
above, concerned the publication of a public figure's photo in the
context of an article reporting on a matter of public interest,
namely the investigations on suspicion of tax evasion against Mr G.
which had led to the search of his premises and possible links with a
murder attempt committed against him.
- The
Court will now turn to the Supreme Court's argument relating to the
secrecy of the investigations for tax evasion. It notes in
particular, that the Supreme Court did not consider it of any
relevance whether the applicant had obtained the information about
the investigations and the details of the suspicion against Mr G. by
inciting tax officials to breach their duty of secrecy or – as
it had claimed in the article as well as in the proceedings at issue
– by its own journalistic research. However, the question
whether the information published which was accompanied by Mr G.'s
picture was accessible by other means is relevant in such a context
(see, mutatis mutandis, Fressoz et Roire, cited above,
§ 53 and Dammann v. Switzerland, no. 77551/01, § 53,
25 April 2006).
- The
Court is not convinced by the argument relying on the secrecy of the
investigations on the suspicion of tax evasion. The Court notes - and
this is confirmed by the Government – that the applicant
remained free to publish reports on the investigations pending
against Mr G. despite their secret nature. It remained even free to
publish Mr G.'s picture in the context of reporting on the attempted
murder of which he had been the victim.
- In
sum, the Court finds that the reasons adduced by the Supreme Court,
though being “relevant” were not “sufficient”.
The absolute prohibition to publish Mr G.'s picture in the context of
reporting on the investigations against him on the suspicion of tax
evasion was not proportionate to the legitimate aim pursued. It
follows that the interference with the applicant company's right to
freedom of expression was not “necessary in a democratic
society”.
- Consequently,
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 2,063.87 euros (EUR)
as reimbursement of the claimant's costs which it was ordered to pay
in the domestic proceedings. The amount claimed includes value-added
tax (VAT).
- The
Government asserted that the 20% VAT included in the amount did not
constitute a financial burden for the applicant company, since it was
entitled to prior tax deduction (Vorsteuerabzug) in the same
amount.
- The
Court finds the Government's argument pertinent. It notes that
commercial companies, in contrast to private individuals, are
entitled to prior tax deduction. Noting that according to the
relevant bill, 20% VAT have been calculated it reduces the amount
accordingly. It therefore awards the applicant company EUR 1,719.89
under the head of pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 2,063.87, inclusive of VAT, for costs and
expenses incurred in the domestic proceedings and EUR 3,172.50,
inclusive of VAT, for costs and expenses incurred in the Convention
proceedings.
- The
Government again commented that the relevant bills included 20% VAT
and that the sums claimed had to be reduced accordingly.
- Referring
to its reasoning set out above (see paragraph 48 above), the Court
awards the applicant EUR 1,719.89 in respect of the domestic
proceedings and EUR 2,643.75 in respect of the Convention
proceedings. Consequently, a total amount of EUR 4,363.64 is awarded
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
- Holds by six votes to one that there has been a
violation of Article 10 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,719.89 (one thousand
seven hundred nineteen euros and eighty-nine cents) in respect of
pecuniary damage and EUR 4,363.64 (four thousand three hundred
sixty-three euros and sixty-four cents) for 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 unanimously the remainder of the
applicant'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 dissenting opinion of
Mr Herndl is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE HERNDL
1. Introductory remark
The
present case is illustrative of the intellectual problems with which
the Court is faced when it is called upon to exercise the delicate
task of balancing the protection of private life (Article 8 of the
Convention) against freedom of expression (Article 10). The actual
issue with which the Court was faced in this case was whether it was
legitimate or not to publish photos of an Austrian industrialist, Mr
G., in the framework of a newspaper article reporting on pending
investigations against him concerning suspected tax evasion, as well
as on a murder attempt which had taken place earlier. The questions
the Court had to answer was exclusively whether the prohibition
imposed by the Austrian Supreme Court on the newspaper's use of
photos of Mr G (which identified him clearly) to accompany the
relevant report (the content of which was uncontested) constituted a
violation of Article 10, or whether that prohibition was necessary in
order to protect the individual's private life (Article 8).
In
the Von Hannover case the Court stated that “anyone,
even if they are known to the general public, must be able to enjoy a
legitimate expectation of protection of, and respect for, their
private life (Von Hannover v. Germany, no. 59320/00, §
69, ECHR 2004 VI). On the other hand, the Court has forcefully
endorsed, in numerous judgments, the idea that the general public has
a right to be properly informed – a right which is indeed
essential in a democratic society. That right, covered by Article 10,
may extend to aspects of the private life of public figures,
particularly where politicians are concerned (see Editions Plon v.
France, no. 58148/00, ECHR 2004 IV) and may include the
publication of photographs of the person concerned (see Von
Hannover, cited above, § 59). In that connection the
decisive factor in balancing the protection of private life against
freedom of expression must lie “in the contribution that the
published photos ... make to a debate of general interest (see Von
Hannover, cited above, § 76).
2. Was there a debate of general interest and could the
photos make a contribution thereto?
I do
not share the majority's view that the publication of several photos
of Mr G. made any contribution to the “general debate”
which might arise (or have arisen) as a consequence of the
newspaper's reporting on the fact that Mr G. was suspected of evading
taxes. As the whole issue was in fact a non-issue, the photos could
not possibly have “contributed” to any public debate, and
could not readily be regarded as furthering the public interest in
the issue of a possible tax evasion as reported in the newspaper. The
publication of the photos would rather seem to be a gratuitous
intrusion into a person's private life.
A
side issue on which the judgment places some emphasis, however, is
the confidentiality of the tax evasion investigations (see paragraphs
41 and 42). Unlike the published information at the heart of the
Fressoz and Roire case (see Fressoz and Roire v. France
[GC], no. 29183/95, § 53, ECHR 1999 I) the details and
facts on which the newspaper reported in the present case, were not
in the public domain and could not have been obtained except through
a breach of secrecy. This is probably why that argument carried
weight in the opinion of the Austrian Supreme Court.
3. Is Mr G. a “public figure”?
Admittedly
it is not easy to answer that question. The majority accept that Mr
G. is a “public figure”. This is indeed one of their
principal arguments. In fact, Mr G. is the manager of a rather
well-known company producing pistols. Does this profession really
make him a “public figure”? He is known to be a rather
shy individual, shunning publicity. As a person he is not known to
the public at large. His picture (until the publication of the
article by NEWS) had only been printed in specialised
arms-manufacturing magazines. In the Austrian court files (in all
three instances) he was continually described as an “industrialist”
(Industrieller). The present judgment however has promoted him
from “managing director of a well-known enterprise producing
pistols” (see paragraph 8) to a “business magnate who
owns and manages one of the country's most prestigious enterprises”
(see paragraph 36), and for that reason concludes that “by his
very position in society [he is] a public figure”. In point of
fact however Mr G. seems to be quite the opposite of a “public
figure”, as public figures, most of all politicians, must
somehow be actively involved in what is commonly called “public
affairs”, whereas Mr G. seemingly is not (see also the critique
by the Court of attempts to describe a person as such as a “figure
of contemporary society “par excellence” in
Von Hannover, cited above, § 72). Finally, it would be
fallacious to argue that as a consequence of a reference in a
particular newspaper article Mr G. automatically became, and now is,
a “public figure”.
4. Conclusion
In my
view, as far as the publication of his photo is concerned, Mr G. was
entitled to the protection of Article 8 of the Convention. The
present judgment would seem to extend freedom of expression (Article
10 of the Convention) beyond its natural scope.
