Communicated on 20 January 2020 Published on 10 February 2020

FIFTH SECTION

Application no. 37713/18 MEDIENGRUPPE ÖSTERREICH GMBH against Austria lodged on 10 July 2018

SUBJECT MATTER OF THE CASE

The application concerns the applicant company’s right to freedom of expression relating to a newspaper article which it published on 20 July 2016 in its newspaper Österreich . The article concerned a meeting of the 2016 presidential candidate N.H. of the right-wing Austrian Freedom Party ( Freiheitliche Partei Österreich - FPÖ ) with the German newspaper Bild , during which N.H. was confronted with the background of his office manager’s brother. He was presented a photo showing the office manager R.S. together with two persons, one of them the office manager’s brother, H.J.S., at a neo-Nazi meeting in 1987. The applicant company printed the photo and called H.J.S. a “convicted neo-Nazi” . The latter thereupon brought an action for an injunction.

In the proceedings concerning an interim injunction ( einstweilige Verfügung ), the Vienna Commercial Court ( Handelsgericht Wien ) and the Vienna Court of Appeal ( Oberlandesgericht Wien ) decided in favour of the applicant company, while the Supreme Court ( Oberster Gerichtshof ) granted H.J.S.’s appeal on points of law. The Supreme Court considered mainly that the impugned article had essentially concerned N.H. and his office manager, and did not mention that H.J.S. had already served his prison sentence imposed in 1995 under the National Socialist Prohibition Act , nor his good conduct after his release.

In the main proceedings, the above-mentioned courts as well as the Supreme Court in its decision of 21 December 2017 (case no. 6 Ob 222/17s) also decided in favour of H.J.S. The Supreme Court held that in the case at issue, in contrast to the Court’s judgment in the case Österreichischer Rundfunk v Austria , no. 35841/02, 7 December 2006 (which had also concerned H.J.S.), there was no temporal proximity between H.J.S.’s criminal conviction in 1995 and the publication of the impugned article in 2016.

QUESTION S TO THE PARTIES

Has there been a violation of the applicant company’ s right to freedom of expression, in particular its right to impart information , contrary to Article 10 of the Convention (compare and contrast Österreichischer Rundfunk v. Austria ( dec. ) , no. 57597/00, 25 May 2004 , and Österreichischer Rundfunk v. Austria , no. 35841/02, 7 December 2006 ) ?