FAMILIAPRESS ZEITUNGS-GmbH v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                       Application No. 20915/92

                       by FAMILIAPRESS ZEITUNGS-GmbH

                       against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 21 July 1992 by

Familiapress Zeitungs GmbH against Austria and registered on

6 November 1992 under file No. 20915/92;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      24 February 1994 and the observations in reply submitted by the

      applicant on 21 April 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

      The applicant is a limited company registered in Vienna which is

publishing a weekly newspaper.  Before the Commission the applicant is

represented by Mr. M. Graff, a lawyer practising in Vienna.

A.    Particular circumstances of the case

      In May 1989, the Kronenzeitung ("Krone") - a Viennese newspaper -

reported on an attempted rape and, on the same page, reproduced a poem

entitled "Rhymed in the wind" ("In den Wind gereimt") which read as

follows:

      "Weh dir, du greifst heut im Büro

      der Frau Kollegin auf den Po!

      Doch wenn sie selber wen umschwirrt

      und ihn umturtelt und umgirrt

      mit Busen ohn' Befestigung,

      ist das nicht auch Belästigung?"

      "Woe betide you, if you grasp today

      an office colleague's bottom!

      But if she herself flutters around someone

      And bills and coos and teases him,

      With unsupported breast,

      Is that not pestering, too?"

      In June 1989, a journalist of another newspaper commented upon

the above poem as follows:

      "Die alten Herren von der "Krone"

      Jucken Reste der Hormone.

      Ein Busen ohn' Befestigung:

      Hurra! Sie spür'n Verfestigung.

      Daß endlich einmal packerte

      Von Seite 5 die Nackerte

      Die Sabbergreise im Büro:

      O warme Hand am kalten Po!

      Das macht Winde die sich reimen.

      Wär's nicht zum Lachen, müßt' man weinen.

      O Angst! O Lust! Und doch auch lästig:

      Immer geil und ewig gestrig."

      "The old men of the "Krone"

      Are itched by leftover hormones.

      Breasts without support:

      Hurra! They feel a hardening.

      If just once

      The page 5 nude

      Would grab the slobbering old men in their office:

      O warm hand on a cold behind!

      The very winds that break would rhyme.

      If it didn't make you laugh, you had to cry.

      O fear! O lust! But such a nuisance, too:

      Yesterday's men, forever randy."

      In December 1989, in the context of criminal proceedings for

defamation brought by the editor of the newspaper "Krone", this

journalist was acquitted by the Vienna Court of Appeal.

      On 20 December 1989 another newspaper, "Arbeiterzeitung",

reported thereupon.  It stated that the presiding judge had said that

the journalist's answer had not gone beyond the limit of acceptable

journalistic expression reacting to a particularly tasteless report

which had amounted to an immense provocation for any defender of

women's rights.

      On 4 January 1990 the applicant published in its regular

"Columbus" comic strip series a cartoon entitled "Slimed in the wind"

("In den Wind geschleimt"), showing a raven and an old man, both

reading a newspaper and commenting upon its content with the following

text (see Annex):

      "Recht sonderbare Themen hat

      Der Verseschmied vom Kleinformat.

      Erzwingt der Mann des Weibes Huld,

      Dann ist sie meistens selber schuld!

      Die Dichterin, so meint er keck

      lebt wie die Made in dem Speck!

      Wenn ich das alles hier so lese,

      dann drängt sich förmlich auf die These

      Wer bei den Frauen kommt zu kurz,

      läßt in der KRONE seinen Furz!"

      "The themes this tabloid's versesmith has

      are most odd.

      If a man forces a woman's favour,

      mostly she has herself to blame!

      The poetess, he boldly claims,

      lives like the maggots in the ham!

      But as I read all this

      I can't help thinking

      that just those who have no joy with women

      have "farted" in the 'Krone'."

      On 11 January 1990, the editor of the newspaper "Krone" brought

injunction proceedings under Section 1 of the Unfair Competition Act

(Gesetz gegen den unlauteren Wettbewerb) and Section 1330 of the Civil

Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant with

the Vienna Commercial Court (Handelsgericht).

      On 8 February 1990 the Vienna Commercial Court issued a

preliminary injunction order against the applicant prohibiting it from

further publishing the statement: "Those who have no joy with women

have farted in the 'Krone'."  The Vienna Commercial Court found in

particular that there was no journalistic controversy between the

applicant and the "Krone", initiated by the plaintiff itself. In this

respect the Commercial Court noted the lapse of 7 months since the two

publications in May 1989 and January 1990.  The Commercial Court

observed that during this time, the applicant did neither reply to the

opinions expressed in the poem, nor otherwise comment upon this

controversy.  A press controversy which could possibly justify its

publication did therefore no longer exist.

      Moreover, the average reader of the applicant's newspaper would

not be able to establish a link between the cartoon and the poem after

7 months.  The challenged cartoon was at the time in question an

incomprehensible attack upon a competitor on the occasion of the

previous poem and the criminal proceedings.  Such statements could not

be justified by any consideration of freedom of the press.  If such

statements were permitted, a low level of political culture in Austria

would be furthered.  The decision was based upon S. 1 of the Unfair

Competition Act.

      On 20 April 1990, the Vienna Court of Appeal (Oberlandesgericht),

upon the applicant's appeal (Rekurs), quashed the decision of

8 February 1990. The Court of Appeal found that, in the media market,

not every publication of a newspaper company relating to a competitor

was based upon a competitive intent.  Only general defamation of a

competitor without any reference to the reasons for the criticism had

to be considered as unfair competition.  In the present case, the Court

of Appeal confirmed that there had been an ideological controversy

between the applicant and the "Krone".  The applicant's competitive

intent (Wettbewerbsabsicht) completely stood back, and, therefore, a

contravention against the Unfair Competition Act could not be assumed.

The incriminated cartoon was directed against the hints in the

plaintiff's newspaper dated 31 May 1989 that it was in most cases the

women's own fault, if they were victims of sex crimes.  Though there

was a considerable lapse of time between both publications, the average

reader of the applicant's newspaper had been in a position to realise

that, in the incriminated cartoon, the plaintiff was accused of

publishing opinions of woman-haters and sexists.  As, in the newspaper,

the opinion had been expressed that it was in most cases the women's

own fault, if they were victims of sexual assaults or sex crimes,

persons who had no joy with women were entitled to express their

opinions.  The - though harsh - criticism made by the applicant had

thus not been irrelevant in the circumstances.  It had to be regarded

as attempt to influence the public opinion, i.e. that the tendencies

published in the "Krone" were wrong and only be held by persons who

"had no joy with women".

      On 9 October 1990, the Austrian Supreme Court (Oberster Gerichts-

hof), upon appeal (Revisionsrekurs) of the plaintiff, quashed the

Appeal Court's decision, and confirmed thereby the preliminary

injunction of 8 February 1990.

      According to the Supreme Court, the relevant provisions of the

Unfair Competition Act presupposed activities for the purposes of

competition, and the existence of a competitive intention was a

question of fact.  In case of disparaging remarks about a competitor,

there was a factual presumption of a competitive intention.  The

competitive intent must not necessarily have been the sole or most

important purpose of the activity concerned, it should only not

completely stand back behind the real purpose.  Whether this is the

case is a question of law to be judged on the basis of the established

facts.  The applicant had only referred to its interest to inform the

public and a press controversy with the plaintiff on an ideological and

socio-political subject, namely the opinion expressed in the poem

published in plaintiff's newspaper of 31 May 1989 close to a report on

an attempted sex crime that a woman exposed to sexual approaches had

in most cases caused this situation by her provocative behaviour.

      The Supreme Court considered that a controversy between two

newspapers often aimed at furthering the public opinion, and not at

competition.  However, a reaction - without any particular reason -

seven months after an opinion on a specific subject had been expressed

in the newspaper of a competitor could, in no way, be regarded as an

actual ideological controversy.  Moreover, the press had no legitimate

interest to disparage a competitor.  In the present case, the Supreme

Court found that, having regard to the wording of the incriminated

cartoon and its interpretation by the average reader, the plaintiff's

newspapers was unnecessarily disparaged on the grounds that its

employees were insulted and its contents generally depreciated.

Consequently, it had to be assumed that the applicant had acted for the

purposes of competition.

      The Supreme Court also observed that this kind of defamatory

publication could not be justified under the right to freedom of

expression as guaranteed by Article 10 of the Convention.

      The Supreme Court concluded that the applicant company had

contravened against Section 1 of the Unfair Competition Act.

      On 19 April 1991 the Vienna Commercial Court issued in the main

proceedings a prohibitory injunction ordering the applicant to restrain

publishing the challenged last sentence of the cartoon and to publish

in its weekly a revocation on its own expenses.

      On 7 October 1991 the Vienna Court of Appeal dismissed the

applicant's appeal.  The Court of Appeal followed the reasoning of the

Supreme Court's decision.  It stated in particular that even a

newspaper could not rely upon an alleged need for information in order

to justify a disparagement of competitors.

      On 3 December 1991 the Supreme Court did not grant leave to

appeal of the judgment.  This decision was served on the applicant on

23 January 1992.

B.    Relevant domestic law

      Section 1 of the Unfair Competition Act (Bundesgesetz gegen den

unlauteren Wettbewerb) reads as follows:

      "1. Wer im geschäftlichen Verkehr zu Zwecken des Wettbewerbes

      Handlungen vornimmt, die gegen die guten Sitten verstoßen, kann

      auf Unterlassung und Schadenersatz in Anspruch genommen werden."

      "1. Any person who in the course of business commits, for

      purposes of competition, acts contrary to honest practices, may

      be enjoined from further engaging in those acts and held liable

      for damages."

      Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches

Gesetzbuch) provides as follows:

      "(1) Wenn jemandem durch Ehrenbeleidigung ein wirklicher Schaden

      oder Entgang des Gewinnes verursacht worden ist, so ist er

      berechtigt, den Ersatz zu fordern.

      (2) Dies gilt auch, wenn jemand Tatsachen verbreitet, die den

      Kredit, den Erwerb oder das Fortkommen eines anderen gefährden

      und deren Unwahrheit er kannte oder kennen mußte. In diesem Fall

      kann auch der Widerruf und die Veröffentlichung desselben

      verlangt werden..."

      "(1) Anybody who, due to defamation, suffered a real damage or

      loss of profit, may claim for compensation.

      (2) The same applies if anyone is disseminating facts, which

      jeopardize someone's reputation, gain or livelihood, the untruth

      of which was known or must have been known to him.  In this case

      there is also a right to claim a revocation and the publication

      thereof..."

COMPLAINTS

      The applicant complains under Article 10 of the Convention about

the Austrian court decisions under the Unfair Competition Act,

prohibiting it from publishing parts of a cartoon.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 July 1992 and registered on

6 November 1992.

      On 1 December 1993 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

      On 24 February 1994 the Government submitted their observations.

The observations in reply by the applicant were submitted on

21 April 1994.

THE LAW

      The applicant complains under Article 10 (Art. 10) of the

Convention about the Austrian court decisions under the Unfair

Competition Act, prohibiting it from publishing parts of a cartoon.

      Article 10 (Art. 10), so far as relevant, 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.."

      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, ..., for the

      protection of health or morals, for the protection of the

      reputation or rights of others, ... ."

a.    The Government maintain that the applicant failed to comply with

the six-months' time-limit under Article 26 (Art. 26) of the

Convention. According to the Government the relevant period started to

run when the decision of the Vienna Court of Appeal of 7 October 1991

was served, i.e. on 22 October 1991, as the applicant's appeal on

points of law against this decision did not constitute an effective

remedy.

      The Government submit in particular that, according to S. 502

para. 1 of the Code of Civil Procedure a remedy against the judgment

of an appeal court is only admissible if the decision depends on a

question of law of importance for the protection of legal unity, legal

security or the development of the law.  However, in the present case

the Supreme Court had already pronounced its legal view on its decision

of 9 October 1990 in the context of the proceedings concerning the

preliminary injunction.  In the main proceedings, the Vienna Commercial

Court and the Vienna Court of Appeal had relied on this view.  Finally,

the Supreme Court, in its decision of 3 December 1991, did not grant

the applicant company leave to appeal on points of law.

      The applicant company submits that the appeal on points of law,

which it had lodged with the Supreme Court against the decision of the

Vienna Court of Appeal of 7 October 1991, had suspensive effect and was

an ordinary legal remedy.

      The Commission recalls that the period of six months runs from

the date of the final domestic decision after effective and sufficient

remedies have been used (No. 11763/85, Dec. 9.3.89, D.R. 60 p. 128).

      The Commission notes that there were two sets of proceedings in

the present case, namely the provisional proceedings concerning the

preliminary injunction, and the main proceedings, in which the

contested injunction became final.  The Commission notes that in the

first set of proceedings the courts, in particular the Supreme Court,

had already given rather extensive reasoning.  However, the fact that

the applicant company also lodged an appeal on points of law to the

Supreme Court in the context of the main proceedings should not be held

against it.  Thus, the six-months'-period started to run on 23 January

1992, when the Supreme Court's decision of 3 December 1991 was served.

The application was introduced on 21 July 1992.

      Therefore the application is in compliance with the requirements

laid down in Article 26 (Art. 26) of the Convention.

b.    As regards the merits of the application, the Government submit

that, although there was an interference with the applicant's right to

freedom of expression under Article 10 para. 1 (Art. 10-1), this

interference was justified under Article 10 para. 2 (Art. 10-2).  It

was prescribed by law, namely by S. 1 of the Unfair Competition Act,

and necessary for the protection of morals and of the rights and the

reputation of others as well as for the preservation of order.  In

particular the opinion expressed by the applicant did not contribute

to a political debate or to another topic of general interest.  For the

vast majority of readers there was no discernible connection between

the cartoon at issue and the poem printed in the "Krone" seven months

before.  Thus, the applicant's statement did not appear as a criticism

but as an insult, which, for commercial interests, disparaged one of

his competitors, namely the "Krone", in an unqualified and unnecessary

manner.  Even if the applicant company did not act only for competitive

reasons but also intended to contribute to a public discussion on

sexism, the actual controversy was by no means adequate for the

seriousness of this issue.

      The applicant company submits that the interference with its

right to freedom of expression was not necessary within the meaning of

Article 10 para. 2 (Art. 10-2).  In particular, the present case

concerned a dispute in the media about a topic of general interest,

namely sexism in today's society.  The comic strip was not published

for commercial or competitive reasons but as a contribution to the

above topic, only two weeks after the acquittal of the journalist, who

had also criticised the "Krone".  Thus the comic strip and, in

particular, its final verse, the repetition of which was prohibited by

the injunction, had to be considered in this context.  Moreover, the

comic strip at issue was, although it was itself provocative, within

the limits of acceptable criticism, as it was a reaction to an equally

provocative poem in the "Krone".

      After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot, therefore, be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds for

inadmissibility have been established.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

      (M.F. BUQUICCHIO)                      (A. WEITZEL)

 

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