Information Note on the Court’s case-law 14

January 2000

News Verlags GmbH & Co.KG v. Austria - 31457/96

Judgment 11.1.2000 [Section I]

Article 10

Article 10-1

Freedom to impart information

Prohibition on publication by a newspaper of a photograph of a suspect in the context of the criminal proceedings against him: violation

(Extract from press release)

Facts : The case was brought by News Verlags GmbH & CoKG, a company based in Tulln, Austria, which is the owner and publisher of the magazine News . In December 1993 the applicant company published articles in its magazine News about a series of letter bombs sent to politicians and other persons in the public eye in Austria which had severely injured several victims. The articles, which also covered the Austrian neo-Nazi scene, included pictures of the suspect, B., accompanied by comments which either directly or indirectly named him as the “perpetrator” of the offen ces at issue. Upon B’s action, the Vienna Court of Appeal, by judgment of 22 September 1994 in preliminary injunction proceedings and by judgment of 30 August 1995 in the subsequent main proceedings, issued injunctions based on section 78 of the Copyright Act which prohibited the applicant company from publishing photographs of B. in the context of the criminal proceedings against him, irrespective of the accompanying text. Its judgments were upheld by the Supreme Court. The applicant company complained tha t its right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights and the prohibition of discrimination guaranteed under Article 14 of the Convention taken in conjunction with Article 10 had been violated.

Law : Art icle 10 of the Convention - The Court considered that the prohibition of the publication of B.’s picture in the context of reports on the criminal proceedings against him constituted an interference with the applicant company’s right to freedom of expressi on guaranteed under Article 10 § 1 of the Convention. The Court was satisfied that the interference was “prescribed by law” namely by section 78 of the Austrian Copyright Act and pursued legitimate aims under Article 10 § 2 of the Convention namely “the pr otection of the reputation or rights of others” as well as “maintaining the authority and impartiality of the judiciary”. As regards the question of whether the interference was “necessary in a democratic society” the Court had regard to the context in whi ch the articles giving rise to the injunction proceedings were written, namely a spectacular series of letter bombs. It noted that B. was a right-wing extremist who had entered the public scene well before the letter-bomb series and that the offences he wa s suspected of, namely offences under the National Socialism Prohibition Act and aiding and abetting assault through letter-bombs, were offences with a political background directed against the foundations of a democratic society. In these circumstances th e publication of photographs of B., which moreover did not disclose any details of his private life, did not encroach upon B.’s right to privacy. The Court further noted that the Vienna Court of Appeal stated in the reasons for its decision of 22 September 1994 and its subsequent judgment of 30 August 1995 that it was not the publication of B.’s picture in itself but its combination with comments which were insulting and contrary to the presumption of innocence that violated B.’s legitimate interests within the meaning of section 78 of the Copyright Act. Nevertheless, the Vienna Court of Appeal  prohibited the applicant company from publishing B.’s picture in connection with reports on the criminal proceedings against him, irrespective of the accompanying te xt. The Court acknowledged that there may be good reasons for prohibiting the publication of a suspect’s picture in itself, depending on the nature of the offence at issue and the particular circumstances of the case. However, the Court noted that no such reasons were adduced by the Vienna Court of Appeal. Nor did the Vienna Court of Appeal carry out a weighing of B.’s interest in the protection of his picture against the public interest in its publication which, according to Austrian law, is required under section 78 of the Copyright Act. The Court found this all the more surprising as the publication of a suspect’s picture is not generally prohibited under section 7a of the Austrian Media Act, but - with certain exceptions - depends precisely on a weighing of the respective interests. Finally, the Court considered that the contested injunctions did not restrict the applicant company’s right to publish comments on the criminal proceedings against B. However, they restricted the applicant company’s choice as to the presentation of its reports, while it was undisputed that other media remained free to publish B.’s picture throughout the criminal proceedings against him. Having also regard to the domestic courts’ finding that it was not the pictures used by the applicant company but only their combination with the text that interfered with B.’s rights, the Court finds that the absolute prohibition of the publication of B.’s picture was disproportionate to the legitimate aims pursued. The Court concluded that the interference with the applicant company’s right to freedom of expression was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. Accordingly it found a breach of Article 10 of the Convention.

Conclusion : violatio n (unanimous).

Article 14 of the Convention taken in conjunction with Article 10 -  The Court did not consider it necessary to examine whether Article 14 of the Convention  taken in conjunction with Article 10 was also violated.

Article 41 of the Convention - The Court awarded the applicant company 276,105 Austrian schillings for costs and expenses. It held that its judgment constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained and dismissed the remainder of the applicant company’s claims for just satisfaction.

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

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