FIRST SECTION

Application no. 58842/09 ATV PRIVATFERNSEH-GMBH against Austria lodged on 4 November 2009

STATEMENT OF FACTS

The applicant company , ATV Privatfernseh-Gmbh, is a broadcasting company with its seat in Vienna . It is represented before the Court by Mr G. Lansky, a lawyer practising in Vienna.

A. The circumstances of the case

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

The broadcast

On 19 November 2007 the applicant company aired a broadcast within the framework of a society programme that showed the then Minister for Health, Families and Youth, A. K., and her partner, P.I., entering a restaurant in Mayerling . The report concerned mainly the minister ’ s presence at the charity event – the presentation of contemporary art in a gourmet restaurant and the sale of towels for the benefit of women in cycling. The commentary referred to the minister ’ s own planned cooking book on roast pork and the chef ’ s creations for the evening.

However, the report started with the minister arriving; at her side her new partner. The introductory commentary stated that they were currently Austria ’ s most observed couple, but rarely appeared in public together. However, that evening the divorced minister and her new partner, P.I., manager at the Austrian railways, came together to the H. restaurant in Mayerling to “do good and eat well”.

Overlaying images of the couple entering the restaurant and A.K. greeting people, the voice over continued stating that A.K. looked fabulous and did not show of the turbulences she had successfully left behind in 2007. However, P.I., the new man at her side, was not entirely prepared with regard to the media ’ s interest: P.I. was in his early thirties, division manager at a company of the Austrian railways and in the middle of divorce proceedings. Because of the pending court proceedings P.I. did not want to pose officially next to his new love.

The images showed P.I. entering next to A.K., later stepping aside and stroking a puppy. A.K. also cuddled the puppy and expressed her love for animals in the direction of the camera.

The proceedings under the Media Act

On 19 December 2007 P.I. lodged an action under section 7 of the Media Act ( Mediengesetz ) claiming that the commentary stating that “P.I. was the new man at A.K. ’ s side”, that “he was in the middle of divorce proceedings” and that “because of the pending proceedings he did not want to pose at his new partner ’ s side” had violated his most intimate personal sphere.

On 26 March 2008 the Vienna Regional Court ( Landesgericht f ü r Strafsachen Wien ) ruled that the statement that P.I. was “in the middle of divorce proceedings” and that according proceedings were pending compromised his most intimate personal sphere, sentenced the applicant company to pay compensation in the amount of 500 Euro and to publish the operative part of the judgment. The applicant company had also to bear the costs of the proceedings. The court however dismissed P.I. ’ s motion to also declare the statement that he was the new man at A.K. ’ s side and refused to pose with his new love as compromising his privacy.

The court established that already in summer 2007 media reported on A.K. ’ s new relationship. It had also been reported in the print media that P.I. was still married at the time and that divorce proceedings were pending. P.I. had however lodged proceedings under the Media Act against those publications in at least thirteen cases with the said court alone. P.I. never gave interviews on his personal situation and did not pose for press photographs together with A.K. P.I. had been seen in public together with A.K. when they went out to dinner on several occasions, when they attended several smaller parties and two weddings.

The court found the statement on the pending divorce proceedings to be compromising since the end of a relationship was often considered a personal failure and resulted in differing reactions from the public, ranging from pity to malice. Divorce proceedings were not public and, before the actual divorce, also not relevant for the question of personal status. The pending of divorce proceedings had thus no public consequence; only the divorce itself publicly testified on the end of a marriage. While other media had reported before the airing of the broadcast of P.I. ’ s failed marriage, that had happened without his consent or comment. He further had objected to those reports by initiating court proceedings fighting them.

As concerns the reference to the relationship between P.I. and A.K., the court found that by appearing together at the charity dinner the media could assume P.I. ’ s consent to the reporting. That assumed consent could however in no way also include the statements on his pending divorce. The simple fact that A.K. was the Minister for Health, Families and Youth did not suffice to move the private person P.I. into the public arena.

Both the applicant company and P.I. appealed against that judgment. On 15 April 2009 the Vienna Court of Appeal ( Oberlandesgericht Wien ) partly followed P.I. ’ s appeal and declared that P.I. had additionally also been compromised in his most intimate personal sphere by the statement that he was “the new man at A.K. ’ s side, did however not want to pose with his new love”. The applicant company was sentenced to pay compensation in the amount of 600 Euro and to publish the operative part of the judgment. It further bore the costs of the appeal proceedings.

The Court of Appeal reiterated domestic jurisprudence stating that “intimate personal sphere” not only encompassed events and situations in the confinement of a home, but also in a “private area within a public space” (“ Privat ö ffentlichkeit ”) that meant private actions in public space that nevertheless was not open for just anyone. When the applicant company thus complained that A.K. and P.I. had appeared in public before the charity dinner, the court referred to the concept of “private area within a public space”. Furthermore, the mere fact that the relationship had been witnessed in public before could not as such determine whether a certain report was capable of compromising P.I., or not. The allegation of an extramarital affair must be considered to compromise the intimate sphere within the meaning of section 7 of the Media Act, as must the statement on pending divorce proceedings and in this context the information on a “new partner” and a “new love”. The Court of Appeal reiterated that pending divorce proceedings had not the same finality as a divorce, since a couple could still decide to discontinue the divorce proceedings. However, according to the jurisprudence, the intention to divorce was part of a person ’ s intimate sphere. In response to the applicant company ’ s argument that P.I. himself had demonstrated the end of his marriage in public by appearing together with A.K., the Court of Appeal found that such appearances were not comparable to those of public figures within the context of their political work or state functions, but needed to be seen as belonging to that already mentioned “private area within a public space”. Those appearances had had no official character and did not allow the conclusion that P.I. had opened up his private life to the public arena. Nor could they be understood as consent to broad media reporting – not only on the couple attending a charity dinner, but also on them conducting an extramarital affair, being partners and in love, all the while divorce proceedings in respect to P.I. were still pending.

With regard to the applicant company ’ s argument that reporting on P.I. as being the minister ’ s new partner was inseparable from reporting on the minister herself, the Court of Appeal observed that all the while media were allowed to report on the Minister of Health, Families and Youth ’ s conduct, considering that she was nominated by the People ’ s Party that represented a conservative image on families, and that her credibility was at stake and of public interest, that did not automatically justify that media could violate her partner ’ s private sphere. Indeed, P.I. himself was not a public figure. It would have sufficed, to satisfy the justified public interest in the minister ’ s conduct, to report that she maintained an obviously sexual relationship with a married man. However, it had not been necessary to state who that married man was. The report in question exceeded the necessary information and also included details on P.I. ’ s marriage.

Since it was unlawful to deal with the single statements in the report separately, the Court of Appeal set aside the dismissal of the first instance court of the statement that P.I. was the “new man at A.K. ’ s side and refused to pose with his new love”.

That judgment was served on the applicant company ’ s counsel on 4 May 2009.

B. Relevant domestic law

Section 7 of the Media Act, which has the title “Interference with a person ’ s most intimate personal sphere” ( Verletzung des höchstpersönlichen Lebensbereiches ), reads as follows:

“(1) If a person ’ s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...

(2) No compensation claim under paragraph 1 exists if

1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;

2. the publication is true and has a direct connection to public life;

3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;

4. it is a direct broadcast on radio or television (live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;

5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”

C OMPLAINT

The applicant company complains under Article 10 of the Convention that the domestic courts ’ judgments violated its right to freedom of expression.

QUESTION TO THE PARTIES

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