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THIRD
SECTION
CASE OF
KRONE VERLAGS GMBH & CO KG v. AUSTRIA (No. 4)
(Application
no. 72331/01)
JUDGMENT
STRASBOURG
9
November 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 Krone Verlags GmbH & Co KG v. Austria (No. 4),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mrs E.
Steiner,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 72331/01) 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 Krone Verlags GmbH and Co KG (“the
applicant company”), on 11 June 2001.
- The
applicant was represented by Mr E. Swoboda, head of the applicant
company's legal department. The Austrian Government (“the
Government”) were represented by their Agent, Mr H. Winkler and
subsequently Mr F. Trauttmansdorff, Head of the International Law
Department at the Federal Ministry for Foreign Affairs.
- The
applicant company complained about a violation of its rights under
Article 10 of the Convention.
- The
application was allocated to the Third 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.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly-composed
Third Section (Rule 52 § 1).
- By
a decision of 22 September 2005, the Court declared the application
admissible.
- Neither
the applicant nor the Government filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant company, a limited liability company with
its registered office in Vienna, is the owner of the daily newspaper
Neue Kronenzeitung.
- In
its issue of 9 May 1997 the applicant company published a one-page
article about the alleged harassment and rape of two winners of
beauty contests, Ms O and Ms S, during a representation
mission in Monte Carlo. The article headed “It's your own
fault girls...” and subtitled “Raped and harassed
in Monte Carlo: Two beauty winners bring heavy charges”
started with the quotation of Ms R, the daughter of the former
manager of the Austrian public relations agency organising these
contests and moderator of such events, saying that “The
prince cannot rape, he is very ill. We [Ms R and her father]
rather think that the girls are only boasting and now try to make as
much money as possible out of this unfortunate incident.”
The article indicated that Ms R was the daughter of “Miss-maker
R from Linz” and noted this was the “first official
comment” on the above scandal. It then mentioned that two
persons had been arrested on suspicion of procuration, described the
details of the alleged incident and cited from a memorandum of Ms O
and Ms S's lawyer. This memorandum referred to the statement made by
a bodyguard of the prince who had allegedly said: “It's your
own fault girls...” The article concluded with further
statements made by Ms R asserting inter alia that the
public relations agency of her father had not arranged the
representation mission at issue.
- Ms R
had made her statements during a telephone interview when contacted
by a journalist of the applicant company.
- Thereupon,
Ms O and Ms S opened private prosecution for defamation
against Ms R.
- On
3 October 2000 the Vienna Regional Criminal Court (Landesgericht
für Strafsachen), having heard the private prosecutors,
Ms R, the applicant company and a number of witnesses, convicted
Ms R of defamation in a printed medium under Section 111 §
2 of the Criminal Code (Strafgesetzbuch) on account of the
statement “The prince cannot rape, he is very ill. We [Ms R
and her father] rather think that the girls are only boasting and now
try to make as much money as possible out of this unfortunate
incident.”, imposed a fine of approximately EUR 1,000
on her and ordered her to pay the costs of the proceedings. It noted
that the offence was a media offence (Medieninhaltsdelikt),
which could only be committed through publication in the applicant
company's newspaper, and found the applicant company jointly and
severally liable (Solidarhaftung) for the fine and the costs
pursuant to section 35 of the Media Act (Mediengesetz).
- In
its plea of nullity against this judgment the applicant company
complained about its joint and several liability under section 35
of the Media Act. It submitted in particular that the court should
have interpreted this provision in conformity with Article 10 of
the Convention, which prescribed joint and several liability only for
failure of compliance with journalistic diligence. The article in
question was written in an objective manner, reporting about the
conflicting versions of the incident in Monte Carlo, and correctly
quoted Ms R's statement without taking sides.
- On
2 April 2001 the Vienna Court of Appeal (Oberlandesgericht),
partly allowing Ms R's appeal, suspended the fine for a
three-year probationary period. For the rest, it dismissed the
applicant company's plea and confirmed the Regional Court's judgment.
It held that the publisher's liability under section 35 of the
Media Act was linked to a media offence, which could be committed not
only by an employee of a media company but also by a third person.
The commission of such an offence fell within the sphere of risk of a
publisher who printed a defamatory statement in its newspaper. Its
subsequent liability was based on considerations of causality and did
not imply any finding of guilt. The court found that the legislator's
choice in favour of the joint and several liability of the publisher
reflected the balance struck between the interests involved, namely
the interest of the media to exercise the right to freedom of
expression, on the one hand, and, on the other, that of the person
desirous of protecting his/her reputation, in favour of the interest
of the defamed victim to secure financially the proceedings
instituted to obtain legal redress. The publisher's strict liability
was in line with its obligation to publish the judgment in its
newspaper.
- Subsequently
Ms O and Ms S requested the applicant company to pay the legal costs
of the defamation proceedings. Having paid, the applicant company
filed a claim against Ms R and requested reimbursement of ATS 105,480
(EUR 7,665.53).
- On
9 September 2002 the Favoriten District Court (Bezirksgericht)
partly granted the applicant company's claim and ordered Ms R to pay
the applicant company 50 % of the costs of the defamation
proceedings. On 25 March 2003 the Vienna Regional Court
confirmed this decision.
- On
16 October 2003 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant company's appeal. It noted that section 35 of
the Media Act was not meant to disburden a defamer. The applicant
company had paid another person's debt for which it was jointly and
severally liable and was, in principle, entitled to recover under
Article 1358 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) the full amount of the sum paid.
- However,
the special internal relationship (Innenverhältnis)
between the applicant company and Ms R stood against full
reimbursement, as Ms R had to be considered as an assistant of
the applicant company (Medienmitarbeiter) in the broadest
sense of the term. The court noted in this regard that the applicant
company had used Ms R's statements for its own economic interests. Ms
R could only commit the offence via the applicant company
which had published the impugned statements. Furthermore, Ms R had
acted free of charge and the interview had been carried out on the
initiative of the applicant company. When correlating these factors
with the guilt of Ms R, the splitting of the liability between the
applicant company and Ms R was acceptable.
- The
court finally did not find it necessary to examine whether the
applicant company could have claimed full reimbursement if section
6 (2) (4) of the Media Act was applicable to its case. It noted
in this regard that the requirements under section 6 (2) (4) were not
met as there was no predominant public interest in Ms R's statements
about the alleged rape of the two winners of beauty contests. Ms R
had at the time of the interview no relation whatsoever with the
public relations agency implicated in these events and the applicant
company could, moreover, not trust Ms R to be informed about the
background of the events at issue.
II. RELEVANT DOMESTIC LAW
- Article
111 of the Criminal Code (Strafgesetzbuch) reads as follows:
“1. As it may be perceived by a third party,
anyone who makes an accusation against another of having a
contemptible character or attitude, or of behaving 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 (...)
3. The person making the statement shall not be punished
if it is proved to be true. As regards the offence defined in
paragraph 1, he shall also not be liable if circumstances are
established which gave him sufficient reason to assume that the
statement was true."
- A
media offence (Medieninhaltsdelikt) is defined as “[an]
act entailing liability to a judicial penalty, committed through the
content of a publication medium, consisting in a communication or
performance aimed at a relatively large number of persons”
(section 1 (12) of the Media Act (Mediengesetz)). Specific
measures under the Media Act in case of a media offence are the
publication of the judgment or a counter-statement (ss 12 and
34) and the joint and several liability of the media owner (section
35).
- Section
35 of the Media Act, at the time of the events, read as follows:
“Liability
35 (1) In criminal judgments concerning media offences
committed through the content of a publication it must be stated that
owners of periodical media bear joint and several liability together
with the convicted person for the fine imposed and the procedural
costs incurred, including the costs for the publication of the
judgment.
(2) If, after the judgment had been pronounced in which
such liability is found to exist ... the owner of the medium changes,
the new owner is jointly and severally liable together with the
former owner.
(3) Imprisonment in default ... can only take place if
the fine could not be collected from the media owner.”
- Section
6 of the Media Act, at the time of the events, read as follows:
“6 (1) If in a medium the presence of the factual
elements of the offence[s] of defamation [....] is established, the
person concerned has against the owner of the medium a claim for
compensation of the prejudice suffered. .....
(2) There is no claim under (1) in case of ....
4. a truthful reproduction of the statement of a third
person if there was a predominant public interest in the knowledge of
the cited statement.”
- Article
1358 of the Civil Code (Allgemeines bürgerliches Gesetzbuch)
provides that a person who has paid another person's debt for which
she/he is liable may claim reimbursement from the debtor. According
to the writings on the subject this claim may be limited or even fail
in case of a special internal relationship (Innenverhältnis)
between these persons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The applicant company complained that its right to
freedom of expression under Article
10 of the Convention had been infringed by its joint and
several liability under section 35 of the Media Act regardless of its
compliance with journalistic diligence. Article
10, as far as relevant, provides 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. Scope of examination and existence of an
interference
- The
Court notes that the scope of its examination of the case is limited
to the applicant company's complaint and, thus, covers the applicant
company's strict liability under section 35 of the Media Act. The
Court further recalls in this respect 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, as a
recent authority, Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 49, ECHR 2004 ..., with further
references). In the present case, the court of first instance found
the applicant company jointly and severally liable for the fine and
the costs of proceedings which a defamer, whose statements had been
printed in one of the applicant company's issues, had been sentenced
to pay. However, the applicant company's liability for the fine
actually did not eventuate, as the fine, subsequently suspended by
the second-instance court for a three-year probationary period, never
fell due. The Court, therefore, does not find it necessary to pursue
the applicant company's complaint about the fine itself. It will,
however, examine under Article 10 of the Convention the applicant
company's complaint about liability for the costs of the defamation
proceedings. In this connection the Court will take account of the
fact that the applicant company was actually called upon to pay the
full costs and, in subsequent proceedings for reimbursement brought
against the defamer, granted reimbursement of only half of the
amount.
- 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.
B. Justification of the interference
1 “Prescribed by law” and “legitimate
aim”
- The
interference at issue had its legal basis under section 35 of the
Media Act and Article 1358 of the Civil Code as interpreted by the
Austrian legal writers and the Supreme Court. The Court further finds
that the interference at issue pursued the legitimate aim of
protecting effectively the reputation and rights of others.
2. “Necessary in a democratic society”
- The
Government argued that the interference was proportionate to the aim
pursued, as the publisher had objectively caused the spreading of the
defamatory statements to a wider public. According to the Government,
the provision at issue was part of an overall concept under the
Austrian Media Act concerning duties and responsibilities of media
owners resulting from the connection between the liability of media
owners for defamation offences committed in their medium, on the one
hand, and, on the other, from the duty to publish the court's
decision (section 34) and the right to make a counter-statement
(section 13). The Government also endorsed the reasoning of the
Court of Appeal, laying down the arguments of shared responsibility
of the media owner irrespective of the question of guilt, and
carefully weighing it against the protection of the victim of a media
offence. Without such shared financial responsibility, a victim, who
had no influence on the issue of what and whose statements were
published in the medium, would run the risk of not recovering the
procedural costs after winning a case. Also, a victim's right to
protection of their honour would be impaired if, for economic
considerations, he/she had to renounce the enforcement of the right
to private prosecution because the incriminated statement was made by
a destitute author. In the present case, the applicant company had
been free to report on the two private prosecutors and their
experiences in Monaco. Neither was the author who had written up the
article held responsible under criminal law nor was the applicant
company sentenced to pay damages. Considering the financial benefit
it had achieved from the publication of the impugned statement with
an eye-catching title and that the applicant company's newspaper had
the highest circulation in Austria, the measures corresponded to a
“pressing social need” and constituted the least severe
means to require media owners to take over some responsibility for
media offences.
- The
applicant company contested the necessity of the interference. It
pointed out that it did not deny its liability for media offences as
such, but was limiting its complaint to the specific circumstances
under section 35 of the Media, which provided liability merely
on account of the publication of a defamatory quotation by a third
person regardless of any negligence on the part of the publisher. The
applicant company further disputed the Government's argument that the
joint and several liability served the protection of the victim's
interests. Since the fine imposed on the defamer had to be paid to
the State, it rather served the interests of the latter. In addition,
the involvement of the media owner in the defamation proceedings
entailed the risk of doubling the costs in case of loss of the
lawsuit by the private prosecutor. There were more efficient
solutions to diminish a private prosecutor's risk to bear the costs
of the proceedings, namely by paying such costs from the amount of
the fine imposed.
.
- The
Court refers to the general principles relating to 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 cases of Fressoz and Roire v. France ([GC],
no. 29183/95, § 45, ECHR 1999 I).
- In
the present case, the applicant company was held liable for the
private prosecutors' costs of proceedings against a defamer whose
statement had been published in the company's newspaper. The Court
finds that such civil liability is, in itself, not incompatible with
the requirements of Article 10 of the Convention but still falls
within the margin of appreciation left to the States (see, mutatis
mutandis, Schneider Austria GmbH v. Austria, no. 21354/93,
Commission's decision of 30 November 1994; concerning a legal
person's complaint under Article 1 of Protocol No. 1 about its
strict liability for penalties imposed on its organs). It notes in
this regard that the defamation offence at issue could only be
committed via publication in the applicant company's
newspaper. Therefore, the legislator's choice to shift the defamed
persons' risk to obtain redress for defamation proceeding to the
media company, usually in a better financial position than the
defamer, does, as such, not appear as an disproportionate
interference with the applicant company's right to freedom of
expression.
- The
present case raises further issues, however, as the applicant company
was not only called upon to pay in the
first place but subsequently also limited in its right to claim
reimbursement. The applicant company ultimately had to bear part of
the costs of the defamation proceedings as the Austrian courts only
granted the reimbursement of half of that sum.
- The
Court recalls that news reporting based on interviews constitutes one
of the most important means whereby the press is able to play its
vital role of “public watchdog”. The methods of objective
and balanced reporting may vary considerably, depending among other
things on the medium in question; it is not for the Court, any more
than it is for the national courts, to substitute its own views for
those of the press as to what techniques of reporting should be
adopted by journalists (Bergens Tidende and Others v. Norway,
no. 26132/95, § 57, ECHR 2000 IV). Punishment for
assisting in the dissemination of statements made by another person
in an interview would seriously hamper the contribution of the press
to the discussion of matters of public interest and should not be
envisaged unless there are particularly strong reasons for doing so
(Thoma v. Luxembourg, no. 38432/97, § 62, ECHR
2001 III; Jersild v. Denmark, judgment of 23 September
1994, Series A no. 298, pp.25-26, § 35).
- However,
the present case essentially differs from the above-cited cases. The
Court notes in this regard that the applicant company's obligation to
pay part of the defamation proceedings costs was established in civil
proceedings and did not imply any finding of guilt against the
applicant company. The Supreme Court based its decision to grant only
reduced reimbursement on considerations of causality. The court
furthermore argued that Ms R had made the impugned statements in an
interview given free of charge and that there was no predominant
public interest in Ms R's statements whom the applicant company could
not trust to be the competent person to comment.
- The
Court finds that these reasons are sufficient and reasonable. The
Court, in particular, attaches importance to the two following
aspects of the case. The Court notes in first place that the
applicant company had obtained the defamatory statements in an
unsolicited interview. By publishing them in its newspaper the
applicant company established the necessary link between these
statements and the public and thereby caused the statements'
dissemination and thus committed the defamation offence. The Court
next observes that the applicant company enjoyed entire editorial
discretion as to whether and how to present the impugned statements
to the public. It decided to place considerable emphasis on them and
opened its article containing Ms R's defamatory remark by
calling it the “first official comment” which undoubtedly
attracted the attention of its readers.
- Taking
account of these elements, and having regard to the domestic
authorities' margin of appreciation, the Court finds that holding the
applicant company liable to pay part of the costs of the defamation
proceedings appears acceptable and not contrary to the applicant
company's right to freedom of expression. In conclusion, there has
been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 10 of
the Convention.
Done in English, and notified in writing on 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
