CASE OF PRINT ZEITUNGSVERLAG GMBH v. AUSTRIA

FIRST SECTION

CASE OF PRINT ZEITUNGSVERLAG GMBH v. AUSTRIA

(Application no. 26547/07)

JUDGMENT

STRASBOURG

10 October 2013

FINAL

10/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Print Zeitungsverlag GmbH v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,

Elisabeth Steiner,

Khanlar Hajiyev,

Mirjana Lazarova Trajkovska,

Julia Laffranque,

Linos-Alexandre Sicilianos,

Erik Møse, judges,

and André Wampach, Deputy Section Registrar,

Having deliberated in private on 17 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 26547/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Print Zeitungsverlag GmbH (“the applicant company”), on 30 May 2007.

2. The applicant company was represented by Knoflach, Kroker, Tonini & Partner, a law firm in Innsbruck. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3. Relying on Article 10 of the Convention, the applicant company alleged a violation of its right to freedom of expression.

4. On 2 December 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant company is a limited liability company established under Austrian law with its registered office in Innsbruck.

6. It publishes Bezirksblatt, Lokalausgabe Hall/Rum (“the Bezirksblatt”), a weekly newspaper distributed free of charge in a region of Tyrol. One edition of the newspaper had 17,440 copies circulated.

7. In January 2006 approximately 300 copies of an anonymous letter were sent out, many of them to members of the supervisory board of the tourism association for Hall and Wattens, two towns in Tyrol. The letter, written in the form of a survey, concerned C.M. and J.M, referred to as “M&M” on account of the initial letter of their surname.

8. C.M. was at the time a practising lawyer and chairman of the tourism association for Hall and Wattens. When the article was published, elections for the post of chairman of the tourism association were underway and C.M. was again standing as a candidate for the post. His brother J.M., also a practising lawyer, had been active in politics in Hall for many years, and was at the material time the member of the City Council responsible for public finance. He was also chairman of the supervisory board of Stadtwerke Hall, the town’s electricity, water and heating supplier.

9. The “survey” part of the letter read:

“In the course of our M&M survey, I would like to ask you the following questions:

1. Would you buy a car from this man? 2. Would you stake your money on a promise made by this man? 3. Does this man have the necessary personal/ professional qualifications? 4. Has this man ever built anything properly? 5. Is this man honest with his own family? 6. Would you allow this man to execute your will?

If you have answered one of these questions with ‘no’, please ask yourself why you want to leave this man in his current position. We, being entrepreneurs, will decide at the next tourism association meeting with our votes. It is our promise, our money, our qualification, our association and our heritage! ...”

10. L., a journalist working for the applicant company’s newspaper, was informed of the anonymous letter. He telephoned C.M. and J.M., who commented on it, claiming it to be part of a political campaign against them. A few minutes later, C.M. telephoned the journalist back and asked him whether he was planning to publish the letter. When L. confirmed that he was, C.M. said that he did not agree to its publication and that he would take legal action if it were published.

11. In the 18 January 2006 issue of the Bezirksblatt, the applicant company published an article entitled “Anonymous campaign against M&M”. The subheading read “M&M or [C.M.’s and J.M.’s full surname] are the target of a not at all bittersweet campaign”. The article contained the story of the anonymous letter and C.M.’s and J.M.’s replies to the accusations made in it. It reported that both of them had stated that the letter had attempted to harm their political activities and had considered the accusations to be a personal insult. The article contained photos of C.M. and J.M. and a reproduction of the letter containing the questions set out above.

12. Relying on section 6 of the Media Act, C.M. and J.M. brought proceedings against the applicant company for defamation, requesting compensation and publication of the judgment. The applicant company argued that its conduct did not amount to defamation, as the article had only quoted someone else’s statements and had duly distanced itself from the contents of the letter. Moreover, the information had been a matter of public interest.

13. On 24 March 2006 the Innsbruck Regional Court found in favour of the claimants and ordered the applicant company to publish the judgment and to pay EUR 2,000 in compensation to each of them.

14. The Regional Court held that the article itself merely commented on the letter in an objective manner and did not agree with its offensive content. Furthermore, the nature of the offices held by the claimants meant that they were often in the local media, but had so far not been the subject of any negative campaign. However, the anonymous letter, which had been included in the article, fulfilled the actus reus of defamation, as it accused C.M. and J.M. of dishonesty and other disreputable character traits, relating to both their professional and private lives. Both had experienced negative repercussions as a result of the article in their professional activities as lawyers, in that they had repeatedly been confronted with the allegations made in the anonymous letter.

15. The Regional Court, referring to the applicant company’s argument that it had only quoted a statement made by someone else, noted that section 6(2)(4) of the Media Act only permitted quoting the statement of a third person if the quotation was truthful and there was an overriding public interest in its publication. This rule would even apply if the identity of the third person having made the statement was unknown. In any case, the court held that it was required to balance the public interest in disseminating information about the statements quoted against the claimants’ interest in protecting their reputation. It accepted that the local public had an interest in knowing about a campaign against the chairman of the tourism association and a local politician. However, public interest did not justify reproduction of the anonymous letter in the article. The applicant company could have provided information on the campaign against C.M. and J.M. without printing the defamatory letter. In that connection, the court observed that by printing the letter the applicant had also made its entire content known to a far greater number of people than the letter itself had reached.

16. The applicant company appealed and lodged a plea of nullity, relying on the Media Act, in particular, on the so-called “law on quotations” developed under section 6(2)(4) of that Act. It asserted that the Regional Court had wrongly considered there to be no overriding public interest in publishing the anonymous letter. In particular, the article and the letter related to the tourism association, which was a public law corporation, and the applicants were both public figures in local politics.

17. The Innsbruck Court of Appeal dismissed the appeal on 10 August 2006. It held that the law on quotations was not applicable in the present case. It was not possible to claim for damages under Article 6 of the Media Act in respect of quotations in the media where the identity of the third person making the offensive statements was known. In such cases, the person concerned could seek compensation from the person who had made the offensive statements in the first place. As in the present case the person who had made the offensive statements had remained anonymous, the applicant company could not rely on section 6(2)(4) of the Media Act. Furthermore the Court of Appeal, confirming the Regional Court’s view, found that in any event there was no overriding public interest in publication of the anonymous letter.

18. The judgment was served on the applicant’s counsel on 3 January 2007.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation. The victim can thus claim damages from the publisher. Section 6, in so far as material, reads as follows:

“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...”

(2) The right referred to in paragraph 1 above shall not apply ...

2. in the case of defamation

(a) [where] the statements published are true or

(b) [where] there was an overriding public interest in publication and, the requisite journalistic diligence having been observed, there were sufficient reasons to believe that the statement was true,

...

4. [where] a truthful quotation of a statement made by a third person is concerned and there was an overriding public interest in knowing about the statement quoted.”

20. For the purpose of Section 6 of the Media Act, “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetz­buch), which reads as follows:

“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...

(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...

(3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicant company complained that the courts’ judgments had violated its right to freedom of expression. It relied on Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

22. The Government contested that argument.

A. Admissibility

23. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant company

24. The applicant company maintained that the interference with its right to freedom of expression was not necessary in a democratic society as required by Article 10 § 2 of the Convention. In particular, it asserted that the article had been published in the context of the upcoming elections of the chairman of the local tourism association and had contributed to a debate of general interest. Moreover, C.M. and J.M. were public figures on account of their activities in the political scene and the nature of the offices held by them. The applicant company also submitted that the courts had failed to evaluate the reproduction of the anonymous letter against the background of the article as a whole, which gave room to the statements of the two people concerned and duly distanced itself from the accusations made against them. Furthermore, the applicant company, citing Albert-Engelmann-Gesellschaft mbH v. Austria (no. 46389/99, 19 January 2006) contested the domestic courts’ view that the reproduction of an anonymous letter had to be distinguished from the quotation of a third person’s statement.

(b) The Government

25. The Government pointed out in the first place that the domestic courts had not prevented the applicant company from publishing the article itself. They had ordered it to pay compensation to C.M. and J.M. only in respect of the publication of the anonymous letter.

26. Furthermore, they submitted that the interference with the applicant company’s right to freedom of expression was based on law and served a legitimate aim, namely the protection of the reputation and rights of others. In that connection, they noted that the anonymous letter which the applicant company had published in the Bezirksblatt accused C.M. and J.M. gratuitously of dishonesty and other reprehensible character traits and had therefore interfered with their rights under Article 8 of the Convention.

27. Regarding the necessity of the interference, the Government argued that in cases which required a balancing of the respective interests under Articles 8 and 10 of the Convention, the domestic courts enjoyed a certain margin of appreciation. In the present case the courts had exercised their discretion in accordance with the criteria established by the Court’s case-law. They had accepted that the article itself contributed to a public debate, while considering that reproduction of the anonymous letter could not be justified by the duty of the press to impart information. The courts had observed, in particular, that the anonymous letter had made far-reaching allegations of dishonesty and other reprehensible character traits against C.M. and J.M. both in their professional lives as practising lawyers and in their private lives. The anonymous letter thus contained excessive value judgments, as it did not provide any factual basis for the accusations made. The courts had also taken into account the fact that the alleged deficiencies in the work or character of C.M. and J.M. had not been the subject of any public discussion before publication of the article including the anonymous letter.

28. In the Government’s view, the domestic courts had rightly considered that section 6(2)(4) of the Media Act did not apply, as the impugned statement could not be attributed to a third person but was anonymous and, moreover, there had been no overriding public interest in its publication. Lastly, the courts had had regard to the fact that the article had brought the contents of the anonymous letter to the attention of a far larger public, since the letter itself had originally only been addressed to some 300 recipients.

2. The Court’s assessment

29. It is not in dispute that the courts’ judgments constituted an interference with the applicant company’s right to freedom of expression which was based on section 6 of the Media Act taken in conjunction with Article 111 of the Criminal Code and served a legitimate aim, namely the protection of the reputation and rights of others.

30. The parties’ argument concentrated on the question whether this interference was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. In respect of the general principles developed by its case-law under Article 10 relating to the freedom of the press, the Court refers to its assessment in a number of recent cases (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 139-141, 18 January 2011; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-102, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-81, 7 February 2012).

31. In these judgments the Court also set out the relevant principles to be applied when examining the necessity of an instance of interference with the right to freedom of expression in the interests of the “protection of the reputation or rights of others”. It noted that in such cases the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely freedom of expression protected by Article 10, and the right to respect for private life enshrined in Article 8 (see MGN Limited, cited above § 142; Von Hannover (no. 2), cited above, § 106; and Axel Springer AG, cited above, § 84). In the context of the present case, the Court reiterates that the right to protection of reputation is a right protected by Article 8 of the Convention as part of the right to respect for private life (see Axel Springer AG, cited above, § 83, and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010).

32. In Von Hannover (no. 2) (cited above, §§ 104-107) and Axel Springer AG (cited above, §§ 85-88), the Court defined the Contracting States’ margin of appreciation and its own role in balancing these two conflicting interests. It held, in particular, that where the balancing exercise between the rights under Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see also MGN Limited, cited above, § 150).

33. The Court went on to identify a number of criteria as being relevant where the right of freedom of expression is being balanced against the right to respect for private life (see Von Hannover (no. 2), cited above, §§ 109-113, and Axel Springer AG, cited above, §§ 89-95), namely

(a) contribution to a debate of general interest

(b) how well known is the person concerned and what is the subject of the report?

(c) prior conduct of the person concerned

(d) method of obtaining the information and its veracity

(e) content, form and consequences of the publication

(f) severity of the sanction imposed

34. In the present case, the Court will therefore examine whether the domestic courts carried out the balancing exercise in conformity with the criteria laid down in its case-law.

(a) Contribution to a debate of general interest

35. The domestic courts accepted that the article itself contributed to a debate of general interest, namely the upcoming election of the chairman of the local tourism association and the campaign against C.M., who held the post of chairman at the time and was standing again as a candidate, and his brother, J.M., a local politician.

(b) How well known is the person concerned and what is the subject of the report?

36. The domestic courts also took into account that C.M. and J.M. were well known to the local public and had been in the local media on account of their respective functions as chairman of the tourism association for Hall and Wattens and member of the Hall City Council. Furthermore they noted that the article had reported on the anonymous letter directed against C.M. and J.M in an objective manner.

(c) Prior conduct of the person concerned

37. Regarding the prior conduct of the people concerned, the courts noted that prior to the dissemination of the anonymous letter there had been no public discussion of C.M. and J.M.’s professional or private conduct. In other words, there had not been any allegations of misconduct against them. The Court observes that there is no indication that C.M. and J.M., although often in the local media, sought the limelight or laid open any details regarding their professional lives as practising lawyers or their private lives.

(d) Method of obtaining the information and its veracity

38. The Court notes that while the case file does not contain any information on how the journalist L. managed to obtain a copy of the anonymous letter, it shows that he duly gave C.M. and J.M. an opportunity to comment before its publication, but proceeded to publish the letter anyway, against C.M.’s explicit wishes. Regarding the veracity of the information, the applicant company did not claim that the allegations made in the anonymous letter against C.M and J.M. were true or had any factual basis. It merely relied on the argument that printing the letter was no more than a quotation of someone else’s statements. However, the domestic courts argued that the publication of an anonymous letter had to be distinguished from the quotation of a third person’s statement and that in any case, the question whether there was an overriding public interest in publication of the anonymous letter had to be examined.

39. The Court considers that this approach is not at variance with its case-law. It has repeatedly held that “punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001‑III; and Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006). Most of the cases concerned statements made by third persons whose identities were known. However, it is important to note that the Court’s own examination of whether there had been a violation of Article 10 of the Convention involved an assessment of the news item or newspaper article as a whole in accordance with the criteria developed by its case-law. Among other criteria, the Court looked into the question whether the reporting was balanced and had regard to the context in which the offensive quotations had been made (see for instance, Jersild, cited above, §§ 31-34). The case cited by the applicant company, which related to the publication of a letter to the editor, whose author could not be identified, indicates that journalists or editors may also quote anonymous statements (Albert-Engelmann-Gesellschaft mbH, cited above, § 32). However, the case also demonstrates that the final assessment of whether there has been a violation of Article 10 depends on a balancing of all relevant criteria: the Court did not share the domestic courts’ view that the fact that the letter to the editor had been an anonymous one was of relevance. Its finding of a violation of Article 10 in that case was mainly based on the consideration that the offending statements contained in the anonymous letter were value judgments which had a sufficient factual basis in statements which the claimant himself had previously made (ibid.).

40. In the present case, as has already been noted above, there had been no allegations against C.M. and J.M. before the publication of the anonymous letter and there is no indication that their own conduct provided any factual basis for the value judgments contained in the anonymous letter, which were thus no more than a gratuitous attack on their reputation. In these circumstances, the Court accepts that there were strong reasons for considering that the publication of the anonymous letter transgressed the limits of permissible reporting.

(e) Content, form and consequences of the publication

41. In respect of the content, form and consequences of the publication, the domestic courts had regard to the fact that the impugned article in the Bezirksblatt had not only reported on the anonymous letter in the context of the upcoming elections of the chairman of the local tourism association, but had reproduced the anonymous letter and thus had disseminated it to a far larger public than the restricted circle of initial recipients (see paragraphs 6 and 28 above). They also referred to the negative repercussions C.M. and J.M. had experienced in their professional lives as practising lawyers.

(f) Severity of the sanction imposed

42. The Court notes that the sanction imposed, namely the order to pay compensation of EUR 2,000 to each of the claimants and to publish the Regional Court’s judgment is not of a degree of severity which would render the interference disproportionate.

(g) Overall conclusion

43. The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts duly applied the criteria established by the Court’s case-law when ordering the applicant company to pay compensation to C.M. and J.M. under Article 6 of the Media Act. They gave “relevant and sufficient” reasons for arriving at the conclusion that while the publication of the article itself contributed to a debate of general interest, reproduction of the anonymous letter amounted to defamation. The Court does not see any strong reasons to substitute its own view for that of the contested decisions of the domestic courts.

44. There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 10 of the Convention;

Done in English, and notified in writing on 10 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachIsabelle Berro-Lefèvre
Deputy RegistrarPresident

Full & Egal Universal Law Academy