FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57597/00 by ÖSTERREICHISCHER RUNDFUNK against Austria

The European Court of Human Rights (Fourth Section), sitting on 25 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mrs E. Steiner , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 13 July 1999,

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 company, the Österreichischer Rundfunk (the Austrian broadcasting corporation, the “ ORF ”), is a public law institution ( Körperschaft des öffentlichen Rechts ) with its seat in Vienna. It is represented before the Court by Mr G. Korn, a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 April 1998 the applicant company broadcast a report about a press conference of the Federal Minister of Justice ( Justizminister ) in which he presented a reform of the preliminary investigation procedure underlining its necessity by the following statement:

“See for example the letter-bomb campaign proceedings 1995. Repeatedly investigation errors occur. Judiciary and police authorities mutually accuse each other. Finally, it turns out that the letter-bomb campaign case has been a neo-nazi case.”

In this context the Minister mentioned as an example of investigation errors, inter alia , the name of B., who had been acquitted of the charge of participating in the letter-bomb assassinations but convicted of offences under the National Socialism Prohibition Act ( Verbotsgesetz ). The criminal proceedings against B. and the following criminal proceedings concerning the letter-bomb campaign against another accused, who had been arrested in 1997 and convicted in 1999, received extensive media coverage.

When transmitting the above quotation of the Minister, the applicant company showed a picture of B. before his trial in 1995, without mentioning his name, his acquittal of the charge concerning the letter-bomb assassinations, the service of his sentence of offences under the Prohibition Act or his release on parole three months before the report at issue was broadcast.

On 13 May 1998 B. brought proceedings under Section 78 of the Copyright Act ( Urheberrechtsgesetz ) against the applicant company, requesting that the applicant be prohibited from publishing his picture without his consent, in particular such pictures that showed him as an accused in the courtroom, firstly, if the accompanying text established a connection with the letter-bomb campaign without reference to his final acquittal or, secondly, if it was maintained in the accompanying text, or the impression was created that he was a neo-nazi, was convicted of offences under the National Socialism Prohibition Act without mentioning that the imposed sentence had already been served, or that he had been released on parole meanwhile.

On 8 September 1998 the Vienna Commercial Court ( Handelsgericht ) dismissed B.'s claims.

The court observed that Section 78 of the Copyright Act prohibited the publication of a person's picture if it violated that person's legitimate interests. As regards the first claim, the court found that B.'s legitimate interests had not been violated as it was a matter of common knowledge that he had been acquitted of the charge of participating in the letter-bomb campaign. Since he was therefore no longer associated with these proceedings by the public, the report could not have given the impression that he had been convicted of this charge. In respect of the second claim, the court found that the report could not have violated B.'s interests as he was finally convicted of offences under the Prohibition Act. Further the court observed that the applicant company's interest in publishing the picture had to be balanced against B.'s interest in the protection of his image, under Section 7a of the Media Act ( Mediengesetz ). Pursuant to this provision the legitimate interests of the person concerned had to be regarded as harmed if the publication substantially prejudiced that person's social and professional advancement. The court found that B.'s interests were not infringed by the neutral and non ‑ condemnatory publication of his picture as the real subject-matter of the report was the planned reform of the preliminary investigation procedure.

On 30 December 1998 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed B.'s appeal.

It confirmed the Commercial Court's finding that the report could not have given the impression that the applicant had been convicted of participating in the letter-bomb assassinations. Further it found, contrary to B.'s submissions, that Section 7a of the Media Act was applicable since B. had been convicted of a crime and not of a lesser offence and did not therefore enjoy unlimited protection of his identity. In particular, the court found that the publication of B.'s picture met a need for information and it had not prejudiced his advancement as he had already found employment and as the picture of the trial had only been shown in order to demonstrate that B. had been a victim of investigation errors. Moreover, he had not been mentioned by name.

On 1 June 1999 the Supreme Court, allowing B.'s further appeal, set aside the decisions of the first and second instance court and granted his claims.

It found that the publication of B.'s picture, taken before the trial concerning the charges against him at that time, had obviously interfered with his interests as it had reminded the public of B.'s court appearance three years after his trial and after his release on parole. Further, the court found that there had been no need for such information and that the publication of the picture did not add any information to the applicant company's report about the Minister's press conference. The court concluded that it was not called upon to balance the conflicting interests concerning B.'s social and professional advancement, within the meaning of Section 7a of the Media Act, as there was no public interest in having B.'s picture published. The court found that the publication had precisely the effects prohibited by Section 78 of the Copyright Act.

Thus, the court ordered the applicant company to refrain from publishing or disseminating B.'s picture without his consent, in particular such pictures that showed him as an accused in the courtroom, firstly, if the accompanying text established a connection with the letter-bomb campaign of 1995 without reference to his final acquittal or, secondly, if it was maintained in the accompanying text, or the impression was created that he was a neo-nazi or that he was convicted of offences under the National Socialism Prohibition Act without mentioning that the imposed sentence had already been served, or that he had been released on parole meanwhile.

B. Relevant domestic law

1. Regulations concerning the ORF and broadcasting

a. In 1966 the ORF was established as a non-profit orientated limited liability company, whose owners were the Federal Authorities ( Bund ) and the Länder . The respective act (Federal Law Gazette no. 195/1966) defined broadcasting services as public responsibility. The supervisory board ( Aufsichtsrat ) consisted of 20 members (nine of whom were appointed by the Länder , six by the Federal Government and five by the shareholder's assembly ( Gesellschafterversammlung ), and it appointed the managing director ( Generalintendant ).

b. On 10 July 1974 the legislator adopted the Constitutional Act concerning the safeguarding of the independence of broadcasting ( BVG-Rundfunk , Federal Law Gazette no. 396/1974). Article 1 of the Constitutional Broadcasting Act, as far as material, reads as follows:

“(...)

2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.

3. Broadcasting within the meaning of paragraph 1 shall be a public service. “

c. The Broadcasting Act of 10 July 1974 ( Rundfunkgesetz 1974, Federal Law Gazette no. 197/1974) transformed the ORF into a public-law corporation, a non-profit orientated legal entity. The act established the ORF's duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (Section 2 (1) 1) and to do so via at least two television channels and three radio stations, one of which must be a regional station (Section 3). Broadcasting time must be allocated to the political parties represented in the national parliament (Section 5 (1)).

A supervisory board ( Kommission zur Wahrung des Rundfunkgesetzes ) rules on all disputes concerning the application of the above-mentioned Act which fall outside the jurisdiction of an administrative authority or court (Sections 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.

The bodies of the ORF are the board of trustees ( Kuratorium ), the managing director, the representatives of the listeners and viewers ( H örer- und Sehervertretung ) and the Auditing Commission ( Prüfungskommission ). The ORF is entitled to collect broadcasting fees.

d. In 2001 the ORF was transformed into a public law foundation, a legal entity without an owner ( ORF-G , Federal Law Gazette no. 83/2001). The foundation has to fulfil a public-law mandate which comprises operating a certain number of programs and providing the necessary technical facilities that these programs be received in defined areas ( Versorgungsauftrag ). The ORF's bodies are the Foundation Council ( Stifungsrat ), the Director General ( Generaldirektor ), the Audience Council ( Publikumsrat ) and the Auditing Commission. The Foundation Council is in charge of monitoring the management and of electing the Director General. It consists of 35 members (of which six are appointed by the Federal Government upon proposals of the political parties represented in the National Assembly ( Nationalrat ), nine by the Federal Government, six by the Audience Council, five by the Central Works Council ( Zentralbetriebsrat ) and nine members representing the Länder).

2. The Copyright Act

Section 78 of the Copyright Act reads as follows:

“(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured. (...)

3. The Media Act

Section 7a of the Media Act reads as follows:

“(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 the legitimate interests of that person are thereby harmed 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) The legitimate interests of the victim shall in any event be harmed 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 or may substantially prejudice the victim's advancement.

COMPLAINTS

The applicant company complained under Article 10 of the Convention that the Supreme Court's judgment, prohibiting it in general from publishing pictures of B., violated its right to freedom of expression. In particular it considered that the Supreme Court failed to balance the conflicting interests and that the prohibition was disproportionate.

The applicant company complained under Article 14 in connection with Article 10 of the Convention that the contested prohibition discriminated against it as compared to other media and other forms of journalism.

THE LAW

A. The Government's preliminary objection

The Government contested the applicant company's locus standi within the meaning of Article 34 of the Convention. Referring mainly to the legal situation since the 2001 Broadcasting Act, they argued that the applicant company is a governmental organisation. This would be shown by the fact that the Federal Government and the Länder appoint the majority of the members of the Foundation Council. As these public authorities are in a position to exercise direct or indirect dominant influence on the applicant company, it was a public undertaking under EU-law (Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings directive). The applicant company's activities are also subject to state control. Firstly, the Federal Communication Panel ( Bundeskommunikationssenat) supervises the applicant company's compliance with its obligations under the 2001 Broadcasting Act . Secondly, the Court of Audit ( Rechnungshof) controls its financial management. Furthermore, a state-owned company (“ GIS ”) collects program fees, which ensure the applicant company's funding to a large extent. Referring to the case of 16 Austrian Communes and Some of their Councillors v. Austria (nos. 5767/72 and others, Commission decision of 31 May 1974, Collection 46, pp. 118-127), the Government contended that the ORF is comparable to municipal authorities, as it can exercise some activities under private-law.

The applicant company contested the Government's view, contending that the Government's submissions were incomplete and partly incorrect. In particular, their submissions relating to the 2001 Broadcasting Act were irrelevant to the present case, as this Act entered into force after the present application was lodged on 29 February 2000. Relying on a decision of the Constitutional Court (27 June 1975, G 24, 27/74), the applicant company argued that its bodies were neither state organs nor did they exercise “public functions”. Its public mandate only consists of the duties defined in the 1974 Constitutional Broadcasting Act, which do not indicate that the applicant company wields “a portion of the State's sovereign power”. Moreover, the 1974 Constitutional Broadcasting Act is also applicable to privately owned broadcasting companies with which the applicant company competes on the media market, as do other European public law broadcasting companies. If one followed the Government's argumentation, public law broadcasting companies could not rely on the provisions of the Convention, whereas their private competitors could, which would not be in conformity with the concept of the Convention.

The Court notes at the outset that the Government's submissions on the applicant company's legal status concern in essence its status since the 2001 Broadcasting Act, thus, a situation after the domestic proceedings were terminated and the present application was lodged with the Court. However, the Court considers it unnecessary in the present case to decide on the Government's preliminary objection concerning the applicant company's legal standing, within the meaning of Article 34 of the Convention, as the application is in any event inadmissible for the following reasons.

B. Merits

a. The applicant company complained that the Supreme Court's judgment was in breach of Article 10 of the Convention, which 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. 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 conceded that the Supreme Court's decision prohibiting the applicant company from publishing B.'s picture in certain contexts constituted an interference with the applicant company's right to freedom of expression and to impart information. This interference was, however, justified under Article 10 § 2 of the Convention. The measure was prescribed by law, namely by Section 78 of the Copyright Act; it served the legitimate aim of protecting the reputation or rights of others and was also necessary in a democratic society.

The Government maintained that the applicant company's report about the Minister's press conference on the planned reform of the preliminary investigation procedure concerned a topic of public interest, whereas the publication of B.'s picture, used as a background illustration, did not contain any additional information beyond that already presented, which would have outweighed B.'s interest not to be pilloried again after having served his sentence and having been released on parole. The Government referred in this connection to the reasons given by the Supreme Court that, in the context of the subject-matter of the report at issue, namely the planned reform of the preliminary investigation procedure, there was no public interest in the publication of B.'s picture, taken several years before and showing him as an accused in criminal proceedings. Even if B. had received high media attention at the time when criminal proceedings were conducted against him, it could not be established that he held any special position in society years after he had served his sentence. The Supreme Court found that, while B.'s interests were obvious, namely not being shown as accused of charges of which he had been acquitted with final effect or for which he had already served his sentence, unless the acquittal and/or the serving of his sentence were mentioned at the same time, there was no public interest in the publication of his picture in the context of the reporting of the Minister's reform. The Government finally pointed out that the interference in the present case was not a general prohibition on publishing B.'s picture, but was limited to the circumstances defined by the Supreme Court's judgment, thereby taking account of B.'s situation of re-integration into society after his release on parole. Thus, the measure was also proportionate to the aim pursued and the Supreme Court did not overstep the margin of appreciation afforded to Member States.

The applicant company shared the Government's view in so far as the interference was prescribed by law and pursued a legitimate aim. It contested, however, that the measure was necessary in a democratic society.

The applicant company argued that the report at issue was broadcast in a neutral way and reflected in essence the Minister's statement about investigation errors occurred, of which B. had been a victim. Therefore B. was not pilloried but presented as a victim by the applicant company. In the applicant company's view, there was a public interest in the information that the Minister had in fact mentioned B. as an example of investigation errors and had thus emphasised the need for reform of the preliminary investigation procedure in the press conference, of which the applicant company gave an account by showing B.'s picture instead of merely mentioning him by name. Since the letter-bomb campaign proceedings were one of the most spectacular proceedings of the Second Austrian Republic, there was a persisting public interest in information. In particular, B. and his picture were known to the public as B. had already entered the “public scene” well before through his political activities, which this Court acknowledged in the case of News Verlags GmbH & CoKG v. Austria (no. 31457/96, § 54, ECHR 2000-I). The same applied all the more after B.'s final conviction of the charges under the Prohibition Act. The applicant company maintained that the Supreme Court had failed to balance the conflicting interests. Furthermore, the interference was disproportionate as the formulation of the the prohibition was not limited only to the circumstances described in the judgment in connection with his photo before the trial, but concerned all kinds of pictures of B.

The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and 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 De Haes and Gijsels v. Belgium , judgment of 24 February 1997, Reports 1997-I, pp. 233-234, § 37). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland , judgment of 25 June 1992, Series A no. 239, p. 28, § 63; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and Unabhängige Initiative Informationsvielfalt v. Austria , no. 28525/95, § 46, 26 February 2002).

The Court reiterates that the notion of necessity implies a “pressing social need”. The Contracting States enjoy a margin of appreciation in this respect, but this goes hand in hand with a European supervision which is more or less extensive depending on the circumstances. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Convention organs must determine, in the light of the case as a whole, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see Lingens v. Austria , judgment of 8 July 1986, Series A no. 103, p. 25, §§ 39-40; The Sunday Times v. the United Kingdom (no. 2) , judgment of 26 November 1991, Series A no. 217, p. 28 ‑ 29, § 50; and Jerusalem v. Austria , no. 26958/95, §§ 33-34, 27 February 2001).

Turning to the circumstances of the case, the Court finds that the prohibition on publishing B.'s picture in the context described by the Supreme Court's judgment constituted an interference with the applicant company's right under Article 10 of the Convention, as it concerned the form in which ideas and information were conveyed (see Jersild v. Denmark , judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31). However, it is noted, that the Supreme Court did not impose an absolute prohibition on publication but rather a conditional one. The conditions imposed were designed to ensure that the public was informed of all the relevant facts of the case and not merely some of them.

The Court endorses the parties' submissions that the interference was prescribed by law, namely by Section 78 of the Copyright Act, and that it pursued the legitimate aim of protecting the reputation or rights of others, as under Article 10 § 2 of the Convention. The dispute in the present case concerns the necessity of the measure.

It observes that B.'s picture was broadcast together with the above quotation of the Minister of Justice concerning investigation errors in the context of the applicant company's report on the Minister's press conference concerning the reform of the preliminary investigation procedure. The Court considers that the report on the reform plans constituted a matter of public interest at the time.

The Court is not convinced by the applicant company's statement that the present case resembles that of News Verlags GmbH & CoKG (cited above), where it found that the prohibition on the magazine from publishing pictures of the same person, in the particular circumstances, violated Article 10 of the Convention. It considers that the cases can be distinguished. Firstly, in the above-mentioned News Verlag case, the Austrian courts issued an absolute prohibition on publication of B.'s picture, whereas in the present case the applicant company was prohibited from doing so in a specific context. Secondly, the report in the News Verlag case was published at the time when the criminal proceedings against B., which attracted great public interest, were pending. The report at issue in the present case, however, was broadcast by television in 1998, thus, three years after the proceedings against B. had terminated and three months after his release on parole.

It is noted that the Supreme Court attached great importance to the above time element finding that B.'s interests were obviously legitimate, namely that the public should not be reminded of his court appearance three years after his conviction and following his release on parole. The Supreme Court also found that there was no interest in the dissemination of B.'s picture as its publication did not add anything of public interest to the information already contained in the report. It thus concluded that B.'s legitimate interests were harmed by the applicant company's report.

The Court considers that the Supreme Court rightly took into account the context in which the applicant company broadcast B.'s picture, namely its report on the Minister's plans to reform the preliminary investigation procedure. Against this background, it also endorses that court's finding that the disclosure of B.'s picture did not add anything of public interest (see mutatis mutandis , Tammer v. Estonia , no. 41205/98, § 68, ECHR 2001-I) and considers that there was no need for another public stigmatisation. The Court further finds that the Supreme Court correctly assessed B.'s legitimate interests at the time, namely the fact that he was seeking to reintegrate into society after having been released on parole, which, in the circumstances of the present case, outweighed the public interest in the disclosure of his picture. The reasons given by the Supreme Court were thus both “relevant and sufficient” and the balance struck was consistent with the “obligations and responsibilities” incumbent on the media when imparting information for the purposes of Article 10 of the Convention. Furthermore, the Court notes that the prohibition at issue was confined to the specific circumstances set out in the judgment of the Supreme Court which ruled that information of this kind could only be published if it also highlighted all relevant facts pertaining the reputation of the person concerned. Consequently, the prohibition at issue cannot be described as amounting to a general prohibition against publishing B.'s picture. The Court, therefore, considers that the measure was also proportionate to the aim pursued, within the meaning of Article 10 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

b. The applicant company complained under Article 14 taken in conjunction with Article 10 of the Convention that the contested prohibition on publishing pictures of B. discriminated against it as compared to other media and other forms of journalism.

In view of the above findings under Article 10 of the Convention, the Court considers that this complaint does not raise a separate issue under Article 14 of the Convention.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President