Communicated on 16 December 2015

FOURTH SECTION

Applications nos 19068/13 and 73322/13 STANDARD VERLAGSGESELLSCHAFT MBH against Austria lodged on 13 March 2013 and 14 November 2013 respectively

STATEMENT OF FACTS

Initially, the first applicant company was Standard Verlagsgesellschaft mbH , a limited liability company based in Vienna which owns and published the daily newspaper “ Der Standard ”. The second applicant company, derstandard.at GmbH, was the owner and publisher of the internet news portal “ derstandard.at ”. During the proceedings before the Court, the second applicant has been merged with the first applicant company. Henceforce , the applicant is one single company, Standard Verlagsgesellschaft mbH .

The applicant company is represented before the Court by Ms M. Windhager , a lawyer practising in Wien.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicant, may be summarised as follows.

1. The background of the case:

The Carinthian hospital operating company ( Landeskrankenanstalten-Betriebsgesellschaft – KABEG ) is a corporate body governed by public law ( Anstalt ö ffentlichen Rechts ) with the duty to manage the operation of five hospitals in Carinthia previously owned by the Region of Carinthia ( Land Kärnten ).

The corporate body is governed by the board of management ( Vorstand ) which consists of at least one person who is appointed and supervised by the supervisory body ( Aufsichtsrat ). The board of management represents the KABEG. The supervisory body consists of three members of the Regional Government, one person who is appointed by the Regional Government and two representatives of the employees of the KABEG. The chairperson of the supervisory body is appointed by the Regional Government.

In 2011 I.M. was the member of the board of management in charge of human resources. K.S. was the chairperson of the supervisory body of the Freedom Party of Carinthia ( Freiheitliche Partei in K ä rnten ) and group leader ( Fraktionsführer ) of the parliamentarians of the Freedom Party in the Carinthian Regional Parliament.

His brother U.S. was Deputy Governor of the Region of Carinthia.

Because of financial problems, re-recruitment ( Wiedereinstellung ) of high level managers and accusations of tortious interference of politicians in the recruitment process, management errors and corruption within the KABEG, a public debate arose in 2010. On 28 October 2010 the medical director of the Klagenfurt Hospital ( Landeskrankenhaus Klagenfurt ) in charge at the present time criticised I.M. in a confidential employees meeting of the medical doctors of the hospital. Only few hours later this medical director was dismissed without notice .

On 25 November 2011 in the internet news portal “derstandard.at”, respectively on 26 November 2011 in the daily newspaper “Der Standard” the following article was published:

“Accusation of spying against board member

...

The chairperson of the board of management of Carinthian Hospitals, I.M., gets under heavy pressure. According to the minutes of a meeting disclosed on Friday, she was supposed to have ordered the spying of a confidential employees meeting of doctors herself . These minutes were drafted after the employees meeting on 28 of October 2010 in course of a subsequent meeting in the office of the board of management and states that “I.M. explains that she has ordered an informer to this meeting, who has written a transcript (“ Wortprotokoll ”) of the meeting.

Methods of the Stasi

Prominent victim of this informer was the medical director M.A, who had accused the management of the KABEG of using “methods of the Stasi” against recalcitrant medical doctors. M.A. had been dismissed without notice immediately after the employees meeting. The informer was a trainee lawyer working at the office of the lawyer of I.M., who had previously contended that she had not been aware of this operation and that the lawyer had ordered this operation on his own. This lawyer took the blame and will have to answer for this action before the bar association. The chairperson of the supervisory board, K.S. (Freedom Party of Carinthia), is supposed to be the spiritus rector of the spying operation. He has also put pressure on journalists because of their critical comments on KABEG.

The now disclosed minutes (which are at disposal of the newspaper) cast doubts on the version of I.M. ...”

2. The proceedings under the Media Act ( Application no 19068/13)

Referring to the statement, that he was supposed to be the “ spiritus rector” of the spying operation, K.S. brought private prosecution proceedings for defamation under the Media Act ( Mediengesetz ) against the applicant company on 10 January 2012, claiming compensation and demanding publication of the subsequent judgment by the Vienna Regional Criminal Court ( Landesgericht ). The statement would lack any grounds of facts and would be false as he had nothing to do with the alleged spying operation.

The applicant company claimed to have the right to publish this statement as it was not a statement of fact but a value judgment. Apart for the importance of this statement to the public debate, K.S. would cultivate a friendship and had bolstered I.M. in the public debate. He had announced in public to investigate against and spy on persons who did not agree with his political views to maintain information in order to defame them in public. Because of this practice he created an area in which operations like the present one were seen as normal and a common practice. The use of the term “ spiritus rector ” was therefore a critical but tolerable value judgment.

On 21 March 2012 the Vienna Regional Criminal Court rejected K.S. ’ s application for proceedings under the Media Act as inadmissible and found that calling K.S. “ spiritus rector ” did not amount to defamation by attributing despisable traits of character or attitude to K.S. as required by Section 6 of the Media Act. To be called a “ spiritus rector ” meant to be seen as a spiritual or ideological guide ( geistiger oder weltanschaulicher F ü hrer ) which, especially for politicians, could not be seen as a negative attitude and which would only contain the core message that others felt inspired by this person. It neither mocked nor insulted K.S.

On 18 April 2012, upon the complaint by K.S., the Vienna Court of Appeal quashed the Vienna Regional Crimi nal Courts decision of 21 March 2012 and ordered the Regional Criminal Court to initiate proceedings under the Media Act against the applicant company. The Vienna Court of Appeal found that taking into consideration not only the term “ spiritus rector ” but the content of the whole article, the publication should be considered as insulting within the meaning of Section 6 of the Media Act.

In the hearing of 15 May 2012, the applicant company explicitly declared that there was no need to take evidence as to the truth of the statement ( Wahrheitsbeweis ) that K.S. was aiding and abetting I.M., as this was not alleged in the article. The content of the article and the allegations expressed a value judgment.

On this day, the Vienna Regional Criminal Court convicted the applicant company pursuant to Section 6 of the Media Act to pay 1,500 euro (EUR) for each publication (3,000 euro (EUR) in total) in compensation to K.S. as well as to publish the judgment. It found that the article in question defamed K.S. within the meaning of Article 111 of the Criminal Code ( Strafgesetzbuch ) and referred in this respect to the findings in its decision of 18 April 2012.

On 26 September 2012 the Vienna Court of Appeal dismissed the applicant company ’ s appeal and stated that not the definition of the term “ spiritus rector ” itself was insulting but the context in which this statement was made. If someone was called a “ spiritus rector ” of a negatively connoted action, such as the present “spying” operation, the reader would, without any doubt, assume that this person was the initiator and spin doctor of the operation in question. Moreover, the article did not criticise the political behaviour of K.S. but accused him of a specific and concrete conduct. In regard to the amount of the compensation, the Vienna Court of Appeal stated that the granted amount did not even exceed 10% of the maximum compensation permitted by law. Moreover, considering the circulation of the newspaper, the compensation the applicant company could not complain about the amount of compensation imposed.

This decision was served on the applicant company on 24 October 2012.

The applicant company lodged an application for a renewal of criminal proceedings under Article 363a of the Code of Criminal Proceedings ( Antrag auf Erneuerung des Strafverfahrens ) with the Supreme Court complaining of a violation of its rights unde r Article 10 of the Convention.

On 26 June 2013 the Supreme Court dismissed the applicant company ’ s application. It confirmed the Vienna Court of Appeal ’ s findings that the article at issue did not criticise the political behaviour of K.S. in general but accused him of a specific and concrete action. It was sufficient for a statement to be examined under Article 111 of the Criminal Code that the suspicion of a specific action was raised against a person and examination was not confined to cases where a person was actually accused of a specific despisable conduct. Quoting the Europ ean Court of Human Rights ’ case ‑ law ( Karsai v. Hungary , no. 5380/07 , 1 December 2009) the Supreme Court considered that the statement at issue was a statement of facts and not a value judgment. As the applicant company had not submitted evidence in order to prove that the defaming statement was true, the applicant company could not complaint of a violation of her rights under Article 10 of the Convention. The infringement of its rights under this provision was prescribed by law and pursue the legitimate aim to protect the reputation of others and necessary under the circumstances at hand (especially when taking into consideration the low a mount of compensation granted).

3. The proceedings under Article 1330 of the Civil Code ( Application no. 73322/13)

On 10 January 2012 K.S. also brought proceedings under Article 1330 of the Civil Code ( Allgemeines B ü rgerliches Gesetzbuch ) against the applicant company at the Vienna Commercial Court ( Handelsgericht ), requesting that the latter be prohibited from stating that K.S. was or was supposed to be “ spiritus rector “ of a spying operation on a confidential employees meeting of doctors working at the Klagenfurt hospital. He also asked for an order to publish a disclaimer of that statement.

After a hearing on 19 March 2012, the Vienna Commercial Court suspended proceedings until the final ending of the criminal proceedings under the Media Act pending before the Vienna Regional Criminal Court .

Upon request by the applicant company, the Vienna Commercial Court resumed the proceedings on an unspecified date.

On 19 November 2012 the Vienna Commercial Court ordered the applicant company not to repeat the statement that K.S. was or was supposed to be “ spiritus rector “ of a spying operation of a closed employees meeting of doctors at the Klagenfurt hospital. It dismissed the application for the order to publish a disclaimer. The Vienna Commercial Court noted that according to constant case-law, a judgment under Section 6 of the Media Act had binding effect in subsequent civil proceedings relating to the same facts. As the criminal courts had found that the content of the article was insulting under Article 111 of the Criminal Code, Article 1330 of the Civil Code was applicable as well. The order to publish a disclaimer was dismissed because the applicant company had already published the operative part of the judgment of the Vienna Regional Criminal Court.

Both parties filed appeals to the Vienna Court of Appeal .

On 29 June 2013 the Vienna Court of Appeal dismissed both appeals. It confirmed the first instance court ’ s judgment as regards the binding effect of the applicants ’ conviction under Section 6 of the Media Act and declared that, because of the well-established case-law on the subject matter, the possibility of an ordinary appeal on points of law with the Supreme Court was not granted.

The applicant company did not file an extraordinary appeal on points of law with the Supreme Court.

B. Relevant domestic law and practice

The relevant legal provisions of the Media Act ( Mediengesetz ), the Criminal Code ( Strafgesetzbuch ) and the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) are to be found in Standard Verlags GmbH and Krawagna -Pfeifer v. Austria , no. 19710/02, § 30-31, 2 November 2006 and Armellini and Others v. Austria , no. 14134/07 , § 24, 16 April 2015 .

It is the Supreme Court ’ s constant case-law that a person who has been convicted in criminal proceedings cannot argue in subsequent civil proceedings that he has not committed the offence at issue (lead-case 1 Ob 612/95, 17 October 1995, SZ 68/195). The Supreme Court has also held that a judgment under Section 6 of the Media Act has this binding effect in subsequent civil proceedings (6 Ob 105/97b, 16 October 1997) . This constant case-law has been reaffirmed recently (6 Ob 21/13a, 8 May 2013) .

COMPLAINT

The applicant company complain under Article 10 of the Convention that its right to freedom of expression was violated without a sufficient justification under of Article 10 § 2 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant in regard to application no 73322/13 exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was an extraordinary appeal on points of law an effective remedy within the meaning of this provision?

2. Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention?