Information Note on the Court’s case-law 59

December 2003

Krone Verlag GmbH & Co. KG v. Austria (no. 3) - 39069/97

Judgment 11.12.2003 [Section I]

Article 10

Article 10-1

Freedom of expression

Prohibition of advertisement comparing the subscription rates of two newpapers without reference to different reporting styles: violation

Facts : The applicant company owns the daily newspaper Neue Kronenzeitung, which pub lished an advertisement for subscriptions, comparing its monthly subscription rates with those of another regional newspaper, the Salzburger Nachrichten . The advertisement described the Neue Kronenzeitung as the ‘the best’ local newspaper. The Salzburger N achrichten applied to thecourts for a preliminary injunction against publication of the advertisement. Following proceedings in the Regional Court and the Court of Appeal, the Supreme Court issued an injunction after finding that the advertisement was misl eading, as it compared newspapers of different quality. The applicant was ordered to refrain from publishing the advertisement unless, inter alia , when comparing the prices between the newspapers it disclosed at the same time their different reporting styl es in the coverage of events. The applicant company complains that this part of the injunction prohibiting the comparison of sales prices without describing the different reporting styles between the dailies breached its freedom of expression.

Law: Article 10 – It was not disputed that the impugned injunction constituted an interference with the applicant company’s right to freedom of expression. The interference was prescribed by law (the Unfair Competition Act) and served the legitimate aim of protecting the reputation or rights of others. Given the wide margin of appreciation accorded to States in purely commercial matters, including the areas of unfair competition and advertising, the Court’s task was confined to ascertaining whether the measure taken at national level was justifiable and proportionate. The impugned injunction had quite far-reaching consequences as the applicant company would have to publish detailed information on the different reporting styles of the respective newspapers when publishin g future advertisements. The injunction was too broad and impaired the very essence of price comparison. Moreover, its practical implementation, though not impossible, was very difficult for the applicant company. The domestic courts had overstepped their margin of appreciation and the measure at issue was disproportionate and, therefore, not necessary in a democratic society.

Conclusion: violation (unanimously).

Article 41 – The Court made an award in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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