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FIRST
SECTION
CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 2)
(Application
no. 21277/05)
JUDGMENT
STRASBOURG
4
June 2009
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 Standard Verlags
GmbH v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21277/05) 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 Standard Verlags GmbH (“the applicant
company”), on 3 June 2005.
- The
applicant was represented by Ms M. Windhager, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the Law Department at the Federal Ministry of European and
International Affairs.
- The
applicant company alleged a violation of its right to freedom of
expression.
- On
3 May 2007 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, a limited liability company with its seat in Vienna, is
the owner of the daily newspaper Der Standard.
- In
its issue of 14 May 2004 Der Standard published an article in
the domestic politics section under the heading “Gossip
mongering” (“Kolportiert”). The article,
which was entitled “A society rumour” (“Ein
bürgerliches Gerücht”) commented on certain
rumours relating to the marriage of Mr Klestil, the then Federal
President. The article also appeared on the website of Der
Standard. It read as follows:
“If the stories circulating between the outlying
district of Döbling and the city centre are to be believed,
there is only one topic of conversation at the moment among the
so called upper crust of Viennese society: the marriage of the
departing presidential couple Thomas Klestil and Margot
Klestil-Löffler [bold print in the original]. Rumour has it
that not only is he about to leave office, but she is about to leave
him. The latter claim has of course set tongues wagging furiously in
bourgeois – and not-so-bourgeois – circles. People here
like nothing better than to be able to express outrage about one of
their own.
In addition to the allegedly less-than-blissful domestic
situation on the Hohe Warte [the Federal President's residence],
there has been persistent gossip recently about the supposedly close
ties between the First Lady, who is her husband's junior by 22 years,
and other political figures. Head of the FPÖ parliamentary group
Herbert Scheibner [bold print in the original], for instance,
is reported to be close to her (Scheibner has accompanied the
presidential couple on a number of foreign trips). Ms Löffler is
also said to be well acquainted with the husband of the Canadian
ambassador (unsurprisingly, given her post as head of the American
department of the Foreign Affairs Ministry).
The fact that the President's wife took a few days off
recently to organise the move from the official residence to the
couple's newly renovated home in Hietzing fuelled further
speculation. So much so, in fact, that Klestil – never
squeamish about putting his emotions on display – had the
following pre-emptive statement published in his information
bulletin, News [an Austrian weekly]: 'Rumours of a separation
are nothing but idle gossip' he said. He added: As of 8 July we will
be embarking on a new phase of our life together. Any assertions to
the contrary are untrue.
Be that as it may, the people are concerned for the
well-being of their President. Apparently, the public information
desk of the President's Office has recently had more callers than
ever before enquiring about the state of the President's marriage.
And more than a few of the callers made their enquiries in the
ultra-refined tones of Schönbrunn.”
- The
article was accompanied by a picture of Mr Klestil and
Mrs Klestil-Löffler, looking in different directions.
A. The proceedings brought by Mr Klestil and Mrs
Klestil-Löffler
- On
18 May 2004 Mr Klestil and Mrs Klestil-Löffler brought
proceedings under sections 6 and 7 of the Media Act (Mediengesetz)
against the applicant company, claiming that the article published in
Der Standard of 14 May 2004 reported on their marriage and
family life and thus interfered with the strictly personal sphere of
their lives.
- By
judgment of 15 June 2004 the Vienna Regional Criminal Court
(Landesgericht für Strafsachen) ordered the applicant
company to pay compensation of 5,000 euros (EUR) to the first
claimant, Mr Klestil, and EUR 7,000 to the second claimant, Mrs
Klestil-Löffler. Furthermore, the court ordered the applicant
company to publish its judgment and to reimburse the claimants'
costs.
- The Regional Court, referring to section 7 of the
Media Act, held that the applicant company had reported on the
strictly personal sphere of the claimants' lives in a manner that was
likely to undermine them in public. It analysed the contents of the
impugned article as alleging, on the one hand, that Mrs
Klestil-Löffler intended to divorce and, on the other hand, that
she had close contacts with two men, thus describing her as a double
adulteress and Mr Klestil as a deceived husband. In reply to the
applicant company's defence that the article merely reported on a
rumour, the Regional Court noted that even the dissemination of a
rumour could breach section 7 of the Media Act, if it conveyed the
impression that there was some truth in it.
- As
to the applicant company's request to take evidence in order to show
that the rumour had actually been spread at the time, the court noted
that in cases concerning an infringement of the strictly personal
sphere of a person's life, section 7 § 2 of the Media Act
excluded the proof of truth (Wahrheitsbeweis), unless the
statement at issue was directly related to public life. Such a direct
link would exist, for instance, where a publication reported on the
state of health of the Federal President which might prevent him from
exercising his functions. However, the state of his marriage did not
have any bearing on his capacity to exercise his functions nor did it
have any other link with public life.
- In
assessing the amount of compensation, the Regional Court had regard
to the fact that Der Standard was a widely read newspaper and
to the considerable degree of insult suffered by the claimants. In
addition it noted that it was highly uncommon in Austria to report on
(true or untrue) details of the private lives of politicians. Having
regard to the above considerations and the need to deter other media
from making similar publications, a relatively large amount of
compensation appeared justified. The difference in the sums awarded
was to the fact that the second claimant was described as a double
adulteress, while the first claimant was “merely”
depicted as a deceived husband.
- The
applicant company appealed. As a point of law it submitted that the
Regional Court had wrongly refused its request for the taking of
evidence. In its view the publication was directly related to public
life within the meaning of section 7 § 2 of the Media Act. The
claimants, being public figures, had made their private life part of
their “marketing strategy”. Like no other presidential
couple before, they had kept the public informed about their
marriage, starting with the first claimant's divorce from his former
wife and his remarriage, to the second claimant. Moreover, the first
claimant had relied heavily on family values during his first
electoral campaign. He therefore had to accept that the public had an
interest in being informed about his private life.
- As
regards points of fact, the applicant company argued that the
Regional Court had wrongly assessed the contents of the article at
issue. Read in its proper context, the article did not state that Mrs
Klestil-Löffler actually intended to divorce and even less that
she was an adulteress. On the contrary the article rather aimed at
exposing the idle gossip propagated in certain upper-class circles.
It clearly pointed to the absurdity of the rumour by explaining that
the allegedly close ties of the second claimant with Mr Scheibner
and with the husband of the Canadian ambassador had perfectly
unsuspicious reasons. Seen in that light, the article did not even
relate to the strictly personal sphere of the presidential couple but
made fun of the gossip in bourgeois society.
- As
regards the sentence the applicant company claimed that the
compensation awards were excessive.
- While
the appeal proceedings were pending, Mr Klestil died. By decision of
2 September 2004 the Vienna Regional Criminal Court discontinued the
proceedings as regards Mr Klestil. On 9 December 2004 the Vienna
Court of Appeal (Oberlandesgericht), on an appeal brought by
Mr Klestil's estate, quashed the Regional Court's decision.
- By
a judgment of 20 January 2005 the Vienna Court of Appeal upheld the
Regional Court's judgment of 15 June 2004.
- It
confirmed that in the present case, the proof of truth was excluded
by section 7 § 2 of the Media Act. The applicant company's
argument that the claimants were public figures and had exposed their
private and marital life to the public eye like no other presidential
couple before was not convincing. While the first claimant had relied
on his family life and on his then marriage in his first campaign
some twelve years ago, his marriage with Mrs Klestil-Löffler had
not played a role in his second campaign nor otherwise during his
second period in office. Moreover, his second and last period in
office had been drawing to a close at the time of the publication. In
sum, the Regional Court had rightly found that the publication at
issue was not directly related to public life. Consequently, it had
rightly refused to take the evidence proposed by the applicant
company.
- There
was no basis for the applicant company's assertion that the article
was aimed at unveiling the hypocrisy of the so called upper crust of
Viennese society or that it described the rumours about the
claimants' marriage as absurd. The Regional Court had rightly
understood the article's contents as conveying rumours about the
Federal President's marriage as if there was some truth in them.
- Finally,
as regards the amounts granted in compensation, the Court of Appeal
found that deterring other media from similar publications was not a
relevant criterion. Nevertheless the other considerations relied on
by the Regional Court justified the compensation awards.
B. The proceedings brought by Mr Scheibner
1. Proceedings under the Media Act
- On
11 June 2004 Mr Scheibner brought proceedings under sections 6 and 7
of the Media Act against the applicant company in respect of the
electronic version of the article, which had been published on the
website of Der Standard and in respect of the print version.
He alleged that the passage referring to him contained an untrue
statement amounting to defamation.
- By
judgment of 20 July 2004 the Vienna Regional Criminal Court ordered
the applicant company to pay EUR 4,000 to Mr Scheibner as
compensation for the publication in the printed version of Der
Standard and EUR 2,000 as compensation for the publication on the
website. Furthermore, the court ordered the applicant company to
publish its judgment and to reimburse the claimant's costs.
- The
court, arguing along the same lines as in its judgment of 15 June
2004 (see paragraphs 10-11 above), held that the applicant company
had reported on the strictly personal sphere of the claimant's life
in a manner that was likely to undermine him in public. It analysed
the contents of the impugned article as alleging that the claimant,
Mr Scheibner, who was a married man, had a close relationship with
Mrs Klestil-Löffler and therefore described him as an adulterer.
Thus, his strictly personal sphere was affected. However, it found
that the publication did not amount to defamation within the meaning
of Article 111 of the Criminal Code (Strafgesetzbuch).
- As
to the amount of compensation it considered that the insult as
regards Mr Scheibner weighed less heavily than as regards the
claimants in the first set of proceedings. In sum, compensation
awards of EUR 4,000 as regards the publication in the paper version
of Der Standard and EUR 2,000 for the publication on the
website, which was less widely read, appeared appropriate.
- The
applicant company and Mr Scheibner appealed, whereby the applicant
company relied on the same grounds as in its appeal in the previous
set of proceedings.
- On
22 December 2004 the Vienna Court of Appeal dismissed the applicant
company's appeal but partly granted Mr Scheibner's appeal. It held
that the impugned statement also breached Article 6 of the Media Act,
since it fulfilled the objective elements of defamation as defined in
Article 111 of the Criminal Code. The claimant was accused of
adultery, which even in a liberal society was still considered an
unlawful and dishonourable act. It considered however, that this had
no influence on the amount of compensation to be paid, which was
therefore upheld.
- As
to the applicant company's appeal, the Court of Appeal again
confirmed the Regional Court's reading of the contents of the
article. It added that the placement of the article in the domestic
politics section and its presentation including the picture of the
presidential couple supported this assessment. Furthermore, the
appellate court noted that the applicant company had not argued
before the Regional Court that the publication was directly related
to public life within the meaning of Article 7 § 2 of the Media
Act.
- In
any case, Mr Scheibner, though a public figure, had a right to
respect for the strictly personal sphere of his life. Rumours about
an alleged relationship between him and the wife of the Federal
President had no link with his public functions and responsibilities
and did therefore not justify the reporting at issue.
2. Proceedings under the Civil Code
- Once
the judgment of the Court of Appeal had become final, Mr Scheibner
brought proceedings under the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) requesting an injunction ordering the applicant
company to refrain from publishing any statement alleging that he had
a relationship with Mrs Klestil-Löffler.
- At
the hearing of 22 April 2005 before the Vienna Commercial Court
(Handelsgericht), the applicant company entered into a
settlement with Mr Scheibner undertaking to refrain from publishing
any such statement. The Commercial Court noted that according to
constant case-law, a judgment under section 6 of the Media Act had
binding effect in subsequent civil proceedings relating to the same
facts. It ordered the applicant company to pay Mr Scheibner's
procedural costs.
- The
Commercial Court's judgment was served on the applicant company's
counsel on 25 May 2005. The applicant company did not appeal.
II. RELEVANT DOMESTIC LAW
- Section
6 of the Media Act provides for the strict liability of the publisher
in cases of defamation; the victim can thus claim damages from him.
In this context “defamation” has been
defined in Article 111 of the Criminal Code (Strafgesetzbuch),
as follows:
“(1) Anybody who, in such a way that it
may be noticed by a third person, attributes to another a
contemptible characteristic or sentiment or accuses him of behaviour
contrary to honour or morality and such 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. In the case of the offence
defined in paragraph 1 he shall also not be liable if circumstances
are established which gave him sufficient reason to believe that the
statement was true.”
- Section
7 of the Media Act provides a claim for damages in cases of
interference with the strictly personal sphere of an individual's
life. In the version in force at the material time, it read as
follows:
“(1) If the strictly personal sphere of
an individual's life is discussed or portrayed in the media in a way
liable to publicly undermine the individual concerned, he or she
shall have the right to claim compensation for the damage sustained
from the media proprietor (publisher). The amount of compensation may
not exceed 14,535 euros; ...
(2) The right referred to in paragraph 1
above shall not apply where:
(i) the statements comprise an accurate
account of a debate held during a public sitting of the National
Council, the Federal Council, the Federal Assembly, a regional
parliament or a committee of one of these general representative
bodies;
(ii) the statements published are true and
are directly related to public life;
(iii) it can be assumed from the
circumstances that the person concerned had agreed to publication, or
(iv) the statements were made during a live
broadcast, and no employee or representative of the broadcaster
failed to exercise proper journalistic care.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the courts' decision in the
proceedings under the Media Act and under the Civil Code violated its
right to freedom of expression as provided in Article 10 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
1. The proceedings under the Civil Code
- The
Court observes that in the proceedings brought by Mr Scheibner under
the Civil Code the applicant company entered into a settlement
undertaking to refrain from repeating the impugned statement. In a
recent case with a similar situation the Court has found that an
applicant who entered into such a settlement had accepted the
limitation of its right to freedom of expression and renounced the
use of available remedies in respect of the complaint. Therefore the
applicant company could not claim to be a victim within the meaning
of Article 34 of the alleged violation (see Standard Verlags GmbH
v. Austria, no. 13071/03, §§ 33-34, 2 November 2006).
The Court sees no reason to come to another conclusion in the present
case. Therefore the complaint has to be rejected as being
incompatible ratione personae, pursuant to Article 35 §§
3 and 4 of the Convention.
2. The proceedings under the Media Act
- As far as the complaint relates to the two sets of
proceedings under the Media Act, one brought by Mr Klestil and Ms
Klestil-Löffler and the other by Mr Scheibner, the Court notes
that it is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
applicant company maintained that the courts had transgressed their
margin of appreciation. It contended in particular that all three
claimants were public figures. Mr Klestil and Mrs Klestil-Löffler
had exposed their private life to the media like no presidential
couple before. Mr Scheibner was a leading politician of the
Freedom Party. The section “Gossip mongering” in which
the article at issue had been published provided readers with a look
behind the scenes of politics and often contained humorous or
satirical contributions. In the applicant company's view the courts
had disregarded the satirical nature of the article and its main aim,
namely to criticise the attitudes of the so called upper crust of
Viennese society which had nothing else to do than to disseminate an
absurd rumour about the Federal President's private life. Finally the
applicant company claimed that the sanctions imposed on it were
disproportionate.
- Moreover,
the applicant company complained that the courts had refused to take
evidence on the existence of a rumour about the presidential couple's
divorce proposed by it on the ground that the proof of truth was not
available where the strictly personal sphere of a person's private
life was concerned.
- The
Government asserted that in a case like the present one the State had
an obligation to strike a fair balance between the right to private
and family life, as guaranteed by Article 8, on the one hand and the
right to freedom of expression, provided for in Article 10, on the
other. A decisive element in striking that balance was to what extent
the incriminated text contributed to a debate of public interest. In
the present case, the Austrian courts correctly assessed the impugned
article as alleging that Ms Klestil Löffler intended
to divorce and as depicting her and Mr Scheibner as adulterers
and Mr Klestil as a deceived husband. As all three of them were
well-known public figures the limits of acceptable reporting were
wider than for private individuals. However, the allegation of
adulterous conduct transgressed these limits. There was no public
interest in the rumours reported by the article, which had no
connection with the public life or political function of any of the
persons concerned. This was all the more so, as Mr Klestil's second
and last term as Federal President was coming to an end at the time
when the article was published.
- Furthermore
the Government argued that the courts had rightly dismissed the
applicant company's defence that the article was of a satirical
nature and had merely intended to criticise a certain “upper
crust of society” for spreading rumours. Even if one accepted
this aim, the actual victims were those whose private life was
exposed. In addition the article was counter-productive as it
contributed itself to spreading the rumour at issue, while pretending
to criticise those who had first launched it.
2. The Court's assessment
- The
Court finds that the domestic courts' judgments given in the two sets
of proceedings under the Media Act constituted an interference with
the applicant's right to freedom of expression.
- It
was not in dispute that that interference was “prescribed by
law”, namely by sections 6 and 7 of the Media Act, nor that it
served a legitimate aim, namely the protection of the rights and
reputation of others. The parties' submissions concentrated on
whether the interference had been “necessary in a democratic
society”.
- The
Court reiterates the fundamental principles established by its
case-law on Article 10 (see, among many others, Éditions
Plon v. France, no. 58184/00, §§ 42 and 43, ECHR
2004-IV).
“42. ... Freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each
individual's self-fulfilment. Subject to paragraph 2, it is
applicable not only to 'information' or 'ideas' that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands
of that pluralism, tolerance and broadmindedness without which there
is no 'democratic society'. As set forth in Article 10, this freedom
is subject to exceptions, which must, however, be construed strictly,
and the need for any restrictions must be established convincingly.
The adjective 'necessary', within the meaning of Article
10 § 2, implies the existence of a 'pressing social need'. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
'restriction' is reconcilable with freedom of expression as protected
by Article 10.
The Court's task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national
courts but rather to review under Article 10 the decisions they
delivered in the exercise of their power of appreciation. This does
not mean that the supervision is limited to ascertaining whether the
respondent State exercised its discretion reasonably, carefully or in
good faith; what the Court has to do is to look at the interference
complained of in the light of the case as a whole and determine
whether it was 'proportionate to the legitimate aim pursued' and
whether the reasons adduced by the national authorities to justify it
are 'relevant and sufficient'.
...
43. The Court has also repeatedly emphasised
the essential role played by the press in a democratic society. In
particular, it has held that although the press must not overstep
certain bounds, for example in respect 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. Not only does it have the task of
imparting such information and ideas: the public also has a right to
receive them (see, among many other authorities, Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and
62, ECHR 1999-III, and Colombani and Others v. France, no.
51279/99, § 55, ECHR 2002-V). The national margin of
appreciation is circumscribed by the interests of a democratic
society in enabling the press to exercise its vital role of “public
watchdog” (see, for example, Bladet Tromsø and
Stensaas, cited above, § 59). ...”
- The
Court observes that the impugned article dealt with rumours about the
claimants' private life and, in the case of Mr Klestil and
Ms Klestil-Löffler, also their family life.
- In
this context the Court reiterates that in cases like the present one,
in which the Court has had to balance the protection of private life
against freedom of expression, it has always stressed the
contribution made by photos or articles in the press to a debate of
general interest (see, in particular, Von Hannover v. Germany,
no. 59320/00, § 60, ECHR 2004 VI; see also Tammer v.
Estonia, no. 41205/98, § 68, ECHR 2001 I).
- Another
important factor to be taken into account is whether the person
concerned exercised any official functions. The Court has underlined
that a fundamental distinction needs to be made between reporting
facts – even controversial ones – capable of contributing
to a debate in a democratic society relating to politicians in the
exercise of their functions and reporting details of the private life
of an individual who does not exercise official functions (see Von
Hannover, cited above, §§ 62-63).
- The
Court has accepted that the right of the public to be informed can in
certain special circumstances even extend to aspects of the private
life of public figures, particularly where politicians are concerned
(see Von Hannover, cited above, § 64, with reference
to Editions Plon, cited above, § 53). However,
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 (see Von Hannover, cited above,
§ 69).
- In
the present case, it is not in dispute that all three claimants in
the proceedings under the Media Act were public figures. At the time
of publication of the impugned article, Mr Klestil was the Federal
President of Austria, Mrs Klestil-Loeffler, his wife, was herself a
high-ranking official at the Foreign Ministry and Mr Scheibner was a
leading politician of the Freedom Party. The parties' opinions differ
in particular as to whether the article made any contribution to a
debate of general interest.
- The
Court observes in this context that section 7 of the Media Act
protects the strictly personal sphere of any person's life against
being discussed or portrayed in a way liable to undermine him or her
in public, except where the statements published are true and
directly related to public life.
- In
applying section 7 of the Media Act in the present case, the domestic
courts ordered the applicant company to pay compensation to the
claimants for violating their strictly personal sphere. They found
that the impugned article had spread rumours about the presidential
couple's private life, alleging that Ms Klestil-Loeffler intended to
divorce and insinuating that Mr Scheibner possibly had an adulterous
relationship with Ms Klestil-Löffler. They dismissed the
applicant company's argument that the article was related to public
life. In that respect, they distinguished a politician's alleged
marital problems from his or her state of health which, though
belonging to the personal sphere, can have a bearing on the exercise
of his or her functions. They added that the presidential couple's
private life had not played a role during his second term in office.
In respect of Mr Scheibner they found that rumours about an
alleged relationship between him and the First Lady did not have any
link with his public functions and responsibilities. Consequently,
since Article 7 of the Media Act prohibits reporting on a person's
strictly personal sphere in absolute terms if there is no direct link
with public life, the courts refused to take evidence on whether the
rumours at issue actually existed at the time.
- The
Court finds that the reasons given by the Austrian courts were
“relevant” and “sufficient” to justify the
interference. It observes that the courts fully recognised that the
present case involved a conflict between the right to impart ideas
and the right of others to protection of their private life. It
cannot find that they failed properly to balance the various
interests concerned. In particular the courts duly considered the
claimants' status as public figures but found that the article at
issue failed to contribute to any debate of general interest. They
made a convincing distinction between information concerning the
health of a politician which may in certain circumstances be a issue
of public concern (see, in particular, Editions Plon, cited
above, § 53) and idle gossip about the state of his or her
marriage or alleged extra-marital relationships. The Court agrees
that the latter does not contribute to any public debate in respect
of which the press has to fulfil its role of “public watchdog”,
but merely serves to satisfy the curiosity of a certain readership
(see, mutatis mutandis, Von Hannover, cited above, §
65).
- As
far as the applicant company complains that it was not allowed to
prove that such rumours as reported by the article were circulating
at the time, the Court observes that while reporting on true facts
about a politician's or other public person's private life may be
admissible in certain circumstances, even persons known to the public
have a legitimate expectation of protection of and respect for their
private life. The Court notes that at no time did the applicant
company allege that the rumours were true. However, even public
figures may legitimately expect to be protected against the
propagation of unfounded rumours relating to intimate aspects of
their private life.
- Having
regard to these considerations, the Court finds the domestic courts
did not transgress their margin of appreciation when interfering with
the applicant company's right to freedom of expression.
- Furthermore
the Court considers that the measures imposed on the applicant
company, namely the order to pay compensation to the claimants and to
publish the judgments were not disproportionate to the legitimate
aim. In sum, the interference with the applicant company's right to
freedom of expression could thus reasonably be considered necessary
in a democratic society for the protection of the reputation and
rights of others within the meaning of Article 10 § 2 of the
Convention.
- There
has consequently been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint that the
courts' decisions in the proceedings under the Media Act violated the
applicant company's right to freedom of expression admissible and the
remainder of the application inadmissible;
- Holds by five votes to two that there has been
no violation of Article 10 of the Convention.
Done in English, and notified in writing on 4 June 2009, 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 dissenting opinion of Judge
Jebens, joined by Judge Spielmann is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE JEBENS, JOINED BY JUDGE
SPIELMANN
1. I
respectfully disagree with the majority's reasoning and conclusion in
this case. In my opinion, the domestic courts' decision to order the
applicant company to pay compensation to the claimants was not
supported by “relevant and sufficient reasons”.
Therefore, in my view, the interference with the applicant company's
right to freedom of expression was not “necessary in a
democratic society”, as required by Article 10 para 2.
2. The
domestic courts' decisions were based on section 7 of the Media Act,
in that the courts held that Der Standard had reported on the
strictly personal sphere of the claimants' lives in a manner which
was likely to undermine them in the public. The impugned article was
interpreted as alleging that Mrs Klestil-Löffler intended to
divorce, and that she had close contacts with two men. The latter
implied, according to the courts' expressed opinion, that Mrs
Klestil-Löffler had committed no less than double adultery and
that Mr Klestil was put in the position of a deceived husband. In
dismissing the applicant company's argument that the article was
related to public life, the courts distinguished between a
politician's alleged marital problems and his state of health,
because in their view only the latter could have a bearing on his
public functions.
3. I
am not convinced by the argument that the article in question did not
contribute to any issue of public interest. There is in my opinion
some strength in the applicant company's assertion that the article:
“A society rumour” (“Ein bürgerliches
Gerücht”) intended in the first place to criticise the
attitude of the so-called upper crust of Viennese society, which had
nothing better to do than spread rumours about the Federal
President's marriage. While the article did not concern a political
debate, it can nevertheless be said to have contributed to an issue
of general interest, namely certain attitudes of society towards the
presidential couple (see, mutatis mutandis, Nikowitz and
Verlagsgruppe News GmbH v. Austria, no. 6266/03, § 25,
22 February 2007, which concerned a satirical article on society's
attitudes towards a sports star). Thus, it is questionable whether at
all the impugned article related to the personal sphere of the
presidential couple.
4. However,
even if one accepts the domestic courts' analysis, that the article
spread rumours about the presidential couple's private life, the
state of the marriage of the Federal President can in my view not be
regarded as a topic of no public interest. Being in the position of
head of state, it is a matter of fact that many people are interested
in the president's private life, though admittedly for various
reasons, spanning from concern about the president's well-being to
mere curiosity. Moreover, the fact that the presidential couple had
kept the public informed about the first applicant's divorce and his
remarriage to the second applicant indicates that the claimants
themselves were aware of the public interest in such matters. In
these circumstances it is important that the Court does not take a
paternalistic view, and try to decide for people what the true
meaning of public interest is. In my view, there can be no doubt that
the impugned article concerned a matter which was of legitimate
interest among many people, and notably not the everyday life of a
person who has not sought publicity (see, a contrario, Von
Hannover, cited above, §§ 62 and 64).
5. In
that context the question whether in fact rumours concerning the
presidential couple's marriage were circulated at the time was of
some relevance (see, mutatis mutandis, Tammer,
cited above, § 68). It appears from the article that Mr Klestil
himself had made a statement in the periodical News, in which he
apparently commented on the rumours of a possible divorce, calling
them completely unfounded. However, because the domestic courts had
found that there was no direct link with the public life within the
meaning of section 7 of the Media Act, the proof of truth in respect
of the existence of the rumours reported was not available to the
applicant company.
6. Furthermore,
although the impugned article was placed in the domestic politics
section, the heading “Gossip mongering” and the title “A
society rumour” already made it clear that it was not to be
taken at face value. The text itself did not pretend to relate to any
established facts. It reported, in a somewhat humorous way, on
rumours about the Federal President's marriage, and without using any
insulting or abusive language (see, a contrario, Tammer, cited
above, § 67). While it did not take a stance on the rumours
concerning a possible break-up of the Federal President's marriage,
it distanced itself from allegations that Ms Klestil-Löffler had
“close relationships” with two other men, by explaining
that there were professional reasons for her being well acquainted
with the two men concerned which should arouse no suspicion whatever.
7. Bearing
in mind the Court's supervisory function, I find it rather
far-fetched to read the passage above as meaning that Ms
Klestil-Löffler had adulterous relationships with two other men.
At least, though it appears that the text is open to different
interpretations, the domestic courts failed to give convincing
reasons why they judged the applicant company on the basis of the
most offensive one.
8. In
sum, I consider that the impugned text remained within the limits of
acceptable comment in a democratic society and that the domestic
courts transgressed their margin of appreciation when interfering
with the applicant company's right of freedom of expression. I
therefore conclude that there has been a violation of Article 10.
