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FIRST
SECTION
DECISION
Application no.
16230/07
by DIE FREIHEITLICHEN IN KÄRNTEN
against
Austria
The
European Court of Human Rights (First Section), sitting
on 6 March 2012 as a Chamber
composed of:
Anatoly Kovler, President,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen,
Section Registrar,
Having
regard to the above application lodged on 16 April 2007,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Die Freiheitlichen in Kärnten, is an
Austrian political party. It was represented before the Court by
Gheneff - Rami - Sommer, a partnership of lawyers practising in
Klagenfurt. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry of European and
International Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
29 November 2005 the chair of the Social Democratic Party in
Carinthia (Sozialdemokratische Partei in Kärnten), S.-K.,
made the following statement about the floating-stage (Seebühne),
a theatre stage floating on Lake Wörthersee in Klagenfurt, on
Radio Carinthia (Radio Kärnten) in a programme called
“Culture of Dispute” (“Streitkultur”):
“... First, there is the topic of the sound
engineering. In order to be successful in open-air performances it is
necessary to have sound engineering which differentiates between
sound sources. This is not the case at the moment, for if you have
ever been to the floating-stage you will have really started
wondering who is singing and where on the stage, because one cannot
tell where the sound comes from and one cannot locate who is singing
...
... It will not be possible – within reasonable
means – [to obtain] the sum of 10 million for construction
and for the sound engineering and lighting equipment ...”
- The
applicant party discovered that the sound system in question had been
purchased from and delivered by a company of which S.-K.’s
husband, H.S., a former ice-hockey player in Carinthia, was the
general manager.
- On
the same day an article was published on the website of the Austrian
Broadcasting Corporation (ORF) about the radio programme and the
topic of the floating-stage. A paragraph of this article read as
follows:
“In last Monday’s edition of the ‘Culture
of Dispute’, which dealt with the floating-stage, [S.-K.]
criticised quite a number of deficiencies of the stage, in particular
the poor quality of the sound system. This system, however, had been
delivered by the company of which her husband, H.S., is managing
director and general manager.”
- On
4 December 2005 the applicant party paid for the publication of a
one-page advertisement in three daily newspapers under the heading
“advertisement” (Anzeige). The content of the
“advertisement” included a commentary, an article and a
picture of S.-K. and her husband, H.S. In the picture one could read
“It’s all going very well for them: SPO chief S.-K. and
husband H.S.”. Moreover, two extracts from faxes were inserted
in the picture, the first showing a total order value of 4,118,214
Austrian schillings (ATS), the second stating “extension of
video system and addition to the sound system of the floating-stage
in 2001 for ATS 1,334,968.32”. Below the picture the following
article was published:
“Floating-stage: S.-K. criticises – her
husband cashes in!
The sound system of the floating-stage cost more than
five million schillings. What nobody knew so far: the husband of SPÖ
chief S.-K. is general manager of the company which sold and
installed the sound system! ...”
- Next
to this article a comment was published with the headline:
“Commentary: Home-run, Mr S.” and contained the following
impugned text:
“... S.-K. conceded a fatal goal in the SPÖ’s
floating-stage power-play. Scored by her own husband, H.S., of all
people. No wonder they are at loggerheads within the SPÖ, and
who knows, probably also in the S. household ...”
- Subsequently,
on 7 April 2006, H.S. brought proceedings under section 78 of
the Copyright Act (Urheberrechtsgesetz) against the applicant
party. He requested that the applicant party be ordered to refrain
(Unterlassung) from publishing without his consent his picture
in connection with reports that he had received millions of Austrian
schillings for a dysfunctional sound system for the Carinthian
floating-stage, whose quality had been criticised by his wife, and
reports that he had scored a goal against his wife and that he and
his wife were now at loggerheads. He also claimed compensation in
this connection. H.S. further requested a preliminary injunction
(einstweilige Verfügung) prohibiting the applicant party
from publishing his picture in connection with the above statements
until a final decision had been taken in the main proceedings.
- On
17 June 2006 the Klagenfurt Regional Court granted the request for
the preliminary injunction. It noted that the claimant was not a
politician and had not chosen to enter the arena of public debate
himself. It held that the claimant’s interests had been
infringed, because the average reader would understand the published
report as saying that the claimant’s wife had criticised his
sound system, although he was responsible for the poor quality of the
system and had moreover received millions for it. Furthermore, the
court came to the conclusion that, in connection with the published
picture of the claimant, his reputation had been damaged in public
opinion.
- On
2 August 2006 the Graz Court of Appeal upheld this decision. It held
that, although they were described in the headings as
“advertisements”, the layout of the published pages had
been consistent with that of the respective newspapers and the pages
were thus not distinguishable for the average reader from general
newspaper articles. It also noted that the pages gave the impression
to the average reader that the claimant had earned millions from the
floating-stage, which had been criticised by his wife, and that he
had thus been unjustifiably enriched. Only in the text of the article
would one have found the remark that the claimant was only the
signing clerk of the company which had secured the order. However,
this would not suffice to catch the attention of the average reader,
who often did not read articles accurately. The court thus found that
the manner in which the picture and headline had been published gave
rise to the misinterpretation that the claimant had enriched himself,
and that therefore his interests under section 78 of the
Copyright Act had been infringed. Although the court conceded that
the applicant party also had an interest in the publication, in order
to criticise a political opponent in the quest for gaining votes, the
publication of the claimant’s picture had not been justified,
for the reasons stated above.
- On
17 October 2006 the Supreme Court dismissed the applicant party’s
extraordinary appeal (außerordentlicher Revisionsrekurs).
- Meanwhile
the main proceedings were resumed. On 30 December 2006,
following an agreement reached between the parties, the Regional
Court gave a judgment by consent (Anerkenntnisurteil) in which
the applicant party acknowledged the claim of H.S. as well founded.
The judgment was served on the parties on 4 January 2007 and entered
into force on 5 February 2007, as none of the parties appealed.
B. Relevant domestic law
- 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.”
COMPLAINT
- The
applicant party complained under Article 10 of the Convention that
the injunction issued against it by the Austrian courts had infringed
its right to freedom of expression.
THE LAW
- The
applicant party complained that the injunction issued against it by
the Austrian courts had infringed its right to freedom of expression.
It relied on 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 argued that the applicant party was no longer a victim of
an alleged violation of Article 10 of the Convention, because in the
main proceedings on the action of H.S. it had concluded a settlement
with him which had resulted in a judgment by consent recognising the
claim of H.S. as well founded. Since the applicant party had not
taken the main proceedings to a final judgment, the application was
also inadmissible for non-exhaustion of domestic remedies. Moreover,
at the time the applicant party filed its application to the Court,
the judgment by consent had already been given by the Regional Court,
but the applicant had deliberately omitted this information in its
application to the Court. It was therefore justified in the
Government’s view to strike out the application for abuse of
the right to petition.
- The
Government argued further that in any event and even considering the
preliminary injunction as an interference with the applicant party’s
rights under Article 10, that interference had been justified as it
was prescribed by law, namely section 78 of the Copyright Act,
pursued a legitimate aim, namely the protection of the rights and
reputation of others, that is of H.S., and was necessary in a
democratic society. H.S. had not become a public figure by marrying a
politician and he himself had made no steps into the public sphere.
There was no overriding public interest in the publication of H.S.’s
picture and the applicant party could have published any comments
they wished to make about the floating stage and S.-K. without
publishing his picture.
- The
applicant party pointed out that the temporary injunction had been
valid until the end of the proceedings and had been binding on it.
Moreover, the judgment by consent did not mean that the applicant
party had agreed with the claimant but had merely procedural value
and was based on the consideration of avoiding additional costs by
continuing the main proceedings in which the applicant party had
little prospect of success. There was also no abuse of the right to
petition. It submitted further that the preliminary injunction had
not been necessary in a democratic society. The Austrian courts had
clearly overstepped the margin of appreciation afforded to them as.
H.S. was a public figure. By being married to a politician, being a
former ice-hockey player and by furnishing the sound system he had
stepped into the public sphere and therefore had exposed himself to
criticism.
- The
Court observes that in two previous cases concerning complaints under
Article 10 in which the applicant had entered into a settlement
undertaking to refrain from repeating a statement, it 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 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, and Standard Verlags GmbH v. Austria (no. 2),
no. 21277/05 § 36, 4 June 2009).
- In
the present case the applicant party also concluded a settlement with
the claimant H.S. whereby it agreed to refrain in the future from
publishing his picture together with a text specified in the terms of
the settlement. The Court sees no reason to come to another
conclusion in the present case. Therefore the application has to be
rejected as being incompatible ratione personae, pursuant to
Article 35 §§ 3 and 4 of the Convention.
- It
is therefore not necessary to consider the Government’s further
objections that the applicant failed to exhaust domestic remedies and
that omitting information about the settlement from the application
constituted an abuse of the right to petition.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Anatoly
Kovler
Registrar President
