FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31457/96

by News VerlagsGmbH & CoKG

against Austria

The European Court of Human Rights ( First Section) sitting on 1 June 1999 as a Chamber composed of

Present: Formation B

Mrs E. Palm, President ,

Mr Fuhrmann

Mr J. Casadevall,

Mr R. Türmen,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges ,

Mr Gaukur Jörundsson,

Mr L. Ferrari Bravo,

Mr B. Zupančič,

Mr T. Pantiru, Substitute Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 March 1996 by News VerlagsGmbH & CoKG  against Austria and registered on 10 May 1996 under file no. 31457/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 20 July 1998 and the observations in reply submitted by the applicant on 16 November 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a company with seat in Tulln. It is the editor an owner of the magazine “News”.

The applicant company is represented before the Court by Mr. Gabriel Lansky, a lawyer practising in Vienna.

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

A. Particular circumstances of the case

In December 1993 a series of letter bombs was sent to politicians and other persons of public interest in Austria. Some of the addressees were severely injured.

On 10 December 1993 B. was arrested on suspicion of having been involved in the so-called letter bomb campaign. He was taken into detention on remand. Preliminary investigations were instituted against him on suspicion of attempted murder and of having committed offences under the National Socialism Prohibition Act ( Verbotsgesetz , ‘the Prohibition Act’). He was later charged with offences under the Prohibition Act and with having aided and abetted assault.

In December 1993 the applicant company published a special issue and later an article in one of the regular issues of its magazine "News", dealing with the so-called letter bomb campaign, the activities of the extreme right and, in particular, the suspect B. The respective reports were illustrated with several pictures of B. The cover page of the special issue for instance showed a small picture of B., subtitled in big letters "The Mad World of Perpetrators". Under the headline "Terror for the Führer" a full-page picture showed B. together with two other persons. According to the comments, this picture was taken in a courtroom, where B. stood up in protest, when the verdict was pronounced against his "Führer", the neo-Nazi leader G.K. Furthermore, it was stated that, when G.K. was sentenced to ten years’ imprisonment, his companions, including B., swore vengeance. According to another comment on the same page, these companions who had been supposed to be harmless lunatics were now arrested as bomb-terrorists. The cover page of the second issue carried the headline "Victims and Nazis" and showed a large picture of one of the victims and a smaller picture of B. and two others. The victim was quoted as saying "I want to meet the perpetrators". On the bottom of the page the words "Nazi-scene uncovered" appeared. In the article a further picture of B. and another suspect, R. was shown. According to the comment, it had been taken on the occasion of the trial against the neo-Nazi leader G.K. The comment went on to state that R. and B., who had both wished to succeed G.K., were now suspected of having dispatched the bombs. Moreover, a wedding picture of B. was published. The comment accompanying it stated that, according to the investigations of the police, B. and R. had probably collaborated in order to organise the bomb campaign. In the article itself B. was described as pathologically ambitious, one of the most brutal members of the neo-Nazi scene and the possible successor of the neo-Nazi leader G.K.

On 21 January 1994 B. brought proceedings under section 78 of the Copyright Act ( Urheberrechtsgesetz ) against the applicant company, requesting that the latter be prohibited from publishing his picture in connection with reports on any criminal proceedings against him. He also requested a preliminary injunction ( einstweilige Verfügung ) to that effect.

On 9 March 1994 the Vienna Commercial Court ( Handelsgericht ) dismissed B.’s motion to grant a preliminary injunction.

The court observed that section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests. However, where criminal proceedings were conducted against the person concerned, that interest had to be weighed against the public interest to receive information. As the present case related to very serious offences based on anti-democratic, subversive ideology, the publication of a suspect’s picture was justified in principle. Further, the court found that it did not have to examine whether the accompanying comment violated B.’s right to privacy as he had failed to indicate which passages of the articles at issue might go beyond the limits of acceptable reporting.

On 22 September 1994 the Vienna Court of Appeal ( Oberlandesgericht ), upon B.’s appeal, issued a preliminary injunction prohibiting the applicant company from publishing B.’s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault.

The Court pointed out that section 78 of the Copyright Act was directed against the abuse of pictures in public. Section 78 sought above all to prevent a person from being disparaged by the publication of a picture, or his private life being made public or his picture being used in a way giving rise to misinterpretation, or in a disparaging and degrading manner. Section 78 of the Copyright Act thus was not limited to the protection of a person’s identity. For this reason section 7 a of the Media Act ( Mediengesetz ) was only partly a lex specialis in relation to section 78 of the Copyright Act.

Further, the Court found that, in assessing whether a person’s legitimate interests within the meaning of section 78 of the Copyright Act had been violated, not only the picture itself, but also the accompanying text had to be taken into account. Also a person suspected of having committed an offence had a legitimate interest in not being denounced in public by the publication of a picture in connection with a disparaging text. In the present case, the contested publication constituted not only a gross insult, but also a serious violation of the presumption of innocence. Quoting some headlines and comments from the articles at issue, the court noted that the applicant company had called B. a "perpetrator" of the letter bomb attacks, a "nazi", a "terrorist for the ‘Führer’" and a companion of the neo-nazi G.K. who had been sentenced to ten years’ imprisonment. These gross violations of B.’s legitimate interests justified a prohibition to publish his picture in the context of the criminal proceedings which were currently conducted against him. However, they did not justify a prohibition to publish B.’s picture in the context of any criminal proceedings against him, as he had requested.

On 22 November 1994 the Supreme Court ( Oberster Gerichtshof ) rejected both parties’ extraordinary appeals on points of law ( außerordentlicher Revisionsrekurs ) finding that they did not raise any important legal issues. As to the applicant company’s appeal, it found that section 7a of the Media Act, to which the applicant company had referred in its submissions, did not lead to the result that a suspect’s legitimate interests could not be violated by the publication of his picture. There was thus no contradiction with section 78 of the Copyright Act. Further, there were no clear indications in the present case that the public interest justified the publishing of B.’s picture. Thus, the appellate court’s decision was not based on a gross misinterpretation of the law.

Supplementing his request of 21 January 1994, B. had in the meantime filed an alternative claim ( Eventualbegehren ), requesting that the applicant company be ordered to refrain from publishing his picture in connection with such statements as had been made in the articles at issue and which he listed in detail.

On 19 April 1995 the Vienna Commercial Court, in the main proceedings, granted B.’s alternative claim, ordering the applicant company to refrain from publishing B.’s picture in connection with statements in which B. was referred to as the perpetrator of the bomb attacks or as being involved in terror or bomb attacks or in connection with such statements as had been made in the articles at issue and which the court listed in detail.

The court found that the publication of B.’s picture together with the accompanying text, not only constituted a gross insult, but also a serious violation of the presumption of innocence. These gross violations of B.’s legitimate interests justified a prohibition on publishing his picture in the context of the criminal proceedings against him, but only if he was referred to as the perpetrator of the offences or if otherwise the rules of objective reporting were violated. Having regard to the seriousness of the charges brought against B. and the notoriety of the victims, the public interest in B.’s appearance outweighed his interest in not having his picture published as long as such reports did not overstep the boundaries of objective journalism. Further, the court emphasised that it did not intend to sanction reporting ( Wortberichterstattung ) as such. It repeated that, when assessing a person’s claim under section 78 of the Copyright Act, the text accompanying the pictures was of importance. It made a difference whether a person, along with the publication of his picture, was stigmatised as the perpetrator of a crime or whether an objective report on the criminal proceedings against him was given.

On 30 August 1995 the Vienna Court of Appeal dismissed the applicant company’s appeal but granted B.’s appeal. It ordered the applicant company to refrain from publishing B.’s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault.

The Court recalled the reasons given in its decision of 22 September 1994 concluding once again that the publication of B.’s picture in the context of the accompanying comments had constituted a gross violation of his legitimate interests, which justified a prohibition to publish his picture in the context of the criminal proceedings against him. It added that the onus was not upon B. to specify the statements which the applicant company had to refrain from publishing in connection with the pictures, since - in general - new accusations were published in the course of the proceedings, and there was no interest in repeating the previous ones. Thus, the Commercial Court’s judgment was worded too narrowly.

On 24 October 1995 the Supreme Court rejected the applicant company’s extraordinary appeal on points of law. It found that the applicant company undoubtedly had a right to impart information about the proceedings conducted against B. However, the right to impart information had to be distinguished from the right to publish pictures of B., which had to be balanced against B.’s interest in the protection of his picture. Even the publication of a picture accompanied by a correct statement of facts, which violated neither section 7a nor section 7b of the Media Act, could infringe the legitimate interests of the person concerned. Finally, the Supreme Court, referring to Article 10 of the Convention, found that the applicant company’s right to freedom of expression had not been violated, since it had not been prohibited from reporting on the proceedings, but only from publishing B.’s picture in that context.

  In December 1995 a first instance court acquitted B. of the charges of assault but convicted him of offences under the Prohibition Act.

On 18 December 1995 the Vienna Court of Appeal, in proceedings brought by B. under section 7b of the Media Act, found that the applicant company had violated the presumption of innocence and ordered it to pay Austrian schillings (ATS) 50,000 by way of compensation to B. The court found that in its articles of December 1993 the applicant company had referred to B. as the perpetrator of the "letter-bomb terror".

B. Relevant domestic law

Copyright Act

Section 78 of the Copyright Act ( Urheberrechtsgesetz ) provides that the picture of a person may neither be shown in public nor be made available to the public if the legitimate interests ( berechtigte Interessen ) of that person would be violated.

Media Act

Section 7a of the Media Act ( Mediengesetz ) protects a person’s identity. It provides that inter alia a person who is suspected of having committed an offence and whose name or picture or other information calculated to make the person known in public have been published in a medium, is entitled to compensation of up to ATS 200,000 if the publication violates the person’s legitimate interests, unless these interests are - where the person concerned is a public figure, or has another involvement in public life or for any other reasons - outweighed by the public interest in the publication. A suspect’s legitimate interests are in any case violated by the publication if he is still a juvenile or if only a minor offence is concerned.

Section 7b provides that a person suspected of having committed an offence but not yet convicted by final judgment, who is portrayed in a medium as being guilty or as the perpetrator of the offence, is entitled to compensation of up to ATS 200,000.

COMPLAINTS

1. The applicant company complains under Article 10 of the Convention that the prohibition on publishing pictures of B. in connection with reports about the criminal proceedings against him violated its right to freedom of expression. Firstly, the applicant company claims that the interference was not prescribed by law. In particular, it considers that the courts interpreted the protection afforded by section 78 of the Copyright Act too extensively. Further, the applicant company contests the necessity of the interference. It submits that the publication of pictures is an integral part of the particular form of journalism represented by weekly magazines like "News". It argues that the absolute prohibition on publishing pictures of B. in the context of the criminal proceedings against him, irrespective of the connection with the accompanying text was disproportionate to the aim of protecting the rights of others and the independence of the judiciary, as other media were still publishing pictures of B. given that Austrian law does not contain a general prohibition on publishing the picture of a suspect. Moreover, other legal provisions such as sections 7a and 7b of the Media Act were available to protect B.’s interests as an accused and to ensure respect for the presumption of innocence.

2. The applicant company complains under Article 14 in connection with Article 10 of the Convention that the contested prohibition on publishing pictures of B. discriminated against it and the form of journalism used by it as compared to other media and other forms of journalism.

PROCEDURE

The application was introduced on 13 March 1996 and registered on 10 May 1996.

On 16 April 1998 the Commission decided to communicate to the respondent Government the applicant company’s complaint that court decisions prohibiting it from publishing pictures of B. in connection with reports on the criminal proceedings against him violated its right to freedom of expression.

The Government’s written observations were submitted on 20 July 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 16 November 1998, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant company complains under Article 10 of the Convention that the prohibition on publishing pictures of B. in connection with reports about the criminal proceedings against him violated its right to freedom of expression.

Article 10 of the Convention 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 submit that the preliminary injunction proceedings were already terminated by the Supreme Court’s judgment of 22 November 1994. Insofar as the applicant company may be understood to complain not only about the decisions in the main proceedings but also about those in the preliminary injunction proceedings, its complaint introduced on 13 March 1996, falls outside the six months’ time-limit provided for by Article 35 § 1 of the Convention. As regards the main proceedings, terminated by the Supreme Court’s judgment of 24 October 1995, the Government do not contest that the applicant company has complied with the requirements of Article 35 § 1.

The applicant company contests the Government’s view. It submits that the Supreme Court’s decision in the preliminary injunction proceedings cannot be regarded as a final decision for the purposes of Article 35 § 1 of the Convention as, following this decision, the main proceedings in which the merits of the claim are decided are continued. It should, therefore, not be held against the applicant company that it made use of all available remedies also in the main proceedings before introducing its application.

In accordance with Article 35 § 1 of the Convention “the court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.

The Court notes that the contested prohibition was first issued in preliminary injunction proceedings and then confirmed in the main proceedings. A preliminary injunction is a provisional measure which serves to secure the main claim until the judgment relating to that claim becomes legally effective. Therefore, the two sets of proceedings have to be considered as a whole. Consequently, the Supreme Court’s decision of 24 October 1995 has to be regarded as the final decision for the purposes of Article 35 § 1 of the Convention. It follows that the application, lodged on 13 March 1996, was introduced within the six months time-limit provided for in the said Article.

The Government contest that the prohibition to publish B.’s picture constituted an interference with the applicant company’s right to impart information. They concede that the publication of a picture may in some cases be protected by Article 10. However, in the present case, the publication of B.’s picture did not carry any information value either in itself or in connection with the accompanying text.

Even assuming that there was an interference, the Government argue, that it was justified under the second paragraph of Article 10. It was prescribed by law, namely by section 78 of the Copyright Act and served to protect the reputation and rights of others and to maintain the authority and impartiality of the judiciary. As to the necessity of the interference, the Government point out that the publication of B.’s picture in combination with short headlines had the result of amplifying the disparaging effect of the text. It was also this connection between pictures and text which distinguished the applicant company’s publication from the publication of similar pictures of B. in other media. Further, the Government argue that the absolute prohibition to publish any picture of B. in the context of reports on the criminal proceedings against him, falls within the margin of appreciation left to the State, taking into account that predominant media which have already shown disregard for the rights of others can otherwise hardly be prevented from repeating such violations. Giving the prohibition a narrower scope, for instance by limiting it to the combination of pictures with certain accompanying statements would not have been practicable and would not have afforded B. sufficient protection. Finally, the interference was also proportionate, as the applicant company was not prohibited from reporting about the criminal proceedings against B.

The applicant company maintains that Article 10 does not only protect the substance of ideas and information expressed, but also the form in which they are conveyed and the means of communication. Its reporting in the present case was a unit of pictures and text which is protected by Article 10 in its entirety. Thus, the prohibition on publishing B.’s picture constituted an interference with its right to freedom of expression.

Further the applicant company, contrary to its previous submissions, accepts that the interference was prescribed by law. It also concedes that it served a legitimate aim, namely the protection of the reputation or the rights of others. However, the applicant company contests the necessity of the interference. It emphasises the political background of the criminal proceedings against B. The letter bomb attacks were directed against politicians and other persons who had stood up for the rights of asylum seekers, foreigners and ethnic minorities. Being based on national socialist ideology they were perceived as a threat to the democratic order of the Republic and were a major subject of public interest. In such a situation the media have the task of informing the public which, in turn, has a right to receive information. The applicant company’s reporting in this context has to be seen as a contribution to a political debate. The applicant company argues that the contested decisions transgressed the margin of appreciation left to the national courts. It points out that the pictures of B. were not in themselves disparaging or degrading. Moreover, it argues that the absolute prohibition to publish any picture of B. in the context of reporting on the criminal proceedings against him, irrespective of the accompanying text, was disproportionate to the legitimate aim pursued as other media were still publishing pictures of B. given that Austrian law does not contain a general prohibition on publishing the picture of a suspect. In particular, the Government’s argument that it would otherwise not have been possible to protect B. against further violations of his rights was not supported by any evidence.

The applicant company further complains under Article 14 in connection with Article 10 of the Convention that the contested prohibition on publishing pictures of B. discriminated against it and the form of journalism used by it as compared to other media and other forms of journalism.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President