KRONE-VERLAG GmbH and DRUCKEREI UND ZEITUNGSHAUS J. WIMMER GESELLSCHAFT mbH v. AUSTRIA

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31564/96
by KRONE-Verlag GmbH and Druckerei und Zeitungshaus J. WIMMER Gesellschaft mbH
against Austria

The European Court of Human Rights (Third Section), sitting on 7 March 2000 as a Chamber composed of

SirNicolas Bratza, President,
MrJ.-P. Costa,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, judges,
andMrsS. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 15 May 1996 and registered on 23 May 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants are two companies incorporated in Austria. The first applicant company is the proprietor and publisher of the Austrian daily newspaper “Neue Kronen-Zeitung”, the second applicant company is the proprietor and publisher of the Austrian newspaper “Oberösterreichische Nachrichten”.

They are represented before the Court by Mr T. Höhne, a lawyer practising in Vienna.

A.Particular circumstances of the case

The facts of the case, as submitted by the corporate applicants, may be summarised as follows.

The application is directed against the 1992 amendment to the Austrian Media Act (Mediengesetz) concerning section 7b on the “protection of the presumption of innocence”, which provides for a compensation claim against the proprietor of a news medium in certain cases of reporting contrary to the presumption of innocence (see relevant domestic law, below).

In September 1994 the corporate applicants and other proprietors of news media instituted proceedings in the Constitutional Court (Verfassungsgerichtshof) claiming that the impugned provision violated their right to freedom of expression, freedom of the press and their right to property, and also amounted to discrimination.

On 28 September 1995 the Constitutional Court dismissed their requests that section 7b of the Media Act as a whole, or particular passages of section 7b(2) of that Act, be declared incompatible with their constitutional rights and thus null and void.

As regards the corporate applicants’ right to apply to the Constitutional Court, the Court recalled that, in order to be able to lodge a complaint under Article 140 § 1 of the Constitution, a complainant had to show that the legal provision constituted an immediate and not only a potential violation of the complainant’s interests, and that there was no other reasonable remedy. Doubts as regards the compliance of legal provisions with the Constitution usually had to be raised in proceedings before the ordinary courts. However, no-one could be expected to commit an offence in order to have the opportunity to raise such doubts in the course of ensuing criminal proceedings. In the present case, the Constitutional Court considered that section 7b of the Media Act immediately restricted the corporate applicants’ freedom of expression and that there was no other reasonable remedy, as they could not be expected to contravene this provision and thereby cause proceedings under the Media Act.

In its further reasoning, the Constitutional Court, referring to principles established by the case-law of the Court (Sunday Times (I) v. the United Kingdom judgment of 26 April 1979; Barthold v. Germany judgment of 25 March 1985) and to its own case-law, recalled that freedom of expression held a prominent place in a democratic society and that the press performed special tasks as purveyors of information and opinions of a political nature or of other general interest.

The Constitutional Court found that section 7b of the Media Act interfered with freedom of expression. It then turned to the question of whether this interference was justified under paragraph 2 of Article 10 of the Convention as being necessary for the protection of the rights of others and maintaining the impartiality of the judiciary.

Having regard to the corporate applicants’ argument that the strict prohibition under section 7b of the Media Act was disproportionate in cases of predominant public interest, the Constitutional Court recalled that the protection of the rights guaranteed under the Convention sometimes required the State to take positive measures.

In the Constitutional Court’s view, the Austrian legislator, in enacting the impugned provision, had complied with its constitutional duty to prevent that reporting in the news media, or possibly even a press campaign, stigmatised a person as guilty of a criminal offence and thereby rendered the presumption of innocence ineffective, thus prejudicing the fairness of the ensuing trial. In doing so, the legislator had acted within its margin of appreciation under paragraph 2 of Article 10 of the Convention. There was no justifiable public interest in denouncing persons as convicted criminal offenders, i.e. in having a “trial by newspaper” (Medienjustiz), before they had been found guilty according to the law. Section 7b of the Media Act was only concerned with press reports of such a nature and did not prevent true reporting about criminal cases.

The Constitutional Court also found that, given the importance of the principle of the presumption of innocence, the exceptions enumerated in section 7b(2) of the Media Act and the choice of civil compensation instead of criminal sanctions, there was no indication of disproportionality. Furthermore, the abstract maximum amounts of fines for causing actual bodily harm or defamation by far exceeded the maximum amount of compensation fixed in section 7b of the Media Act.

For similar reasons, the Constitutional Court rejected the corporate applicants’ argument that there was a violation of their right to property, in particular in cases of a subsequent conviction of the person concerned.

The decision was served on 17 November 1995.

B.Relevant domestic law

Section 7b of the Media Act (Mediengesetz) is entitled “Protection of the presumption of innocence” (Schutz der Unschuldsvermutung) and reads as follows:

“1.A person suspected of having committed an offence but not yet convicted by final judgment, who is portrayed in a medium as being guilty or as the perpetrator of the offence and not only suspected of having committed the offence, is entitled to claim compensation from the proprietor of the news medium (editor) for the insult suffered. The amount of compensation shall not exceed 200,000 ATS; …

2. There shall be no right to compensation if

(1) a true report about a hearing at a public session of the National Assembly,  the Federal Council, the Federal Assembly, the Diet of a Land or a committee of these general representative bodies is concerned,

(2) a true report about a conviction at first instance is concerned which indicates that the conviction is not final,

(3) the person concerned has made a confession in public or before a medium and has not revoked it,

(4) a direct broadcast (live broadcast) is concerned and the employee of the broadcast has applied the care required of journalists,

(5) a true quotation of the statement of a third person is concerned and if there was a predominant public interest in the publication of the quoted statement.”

COMPLAINT

The corporate applicants complain that section 7b of the Austrian Media Act amounts to a violation of their right to freedom of expression as guaranteed by Article 10 of the Convention  which ? as follows :

They consider that section 7b of the Media Act, as interpreted by the Constitutional Court, does not duly balance the competing interests under paragraph 2 of Article 10. In their view, it is disproportionate to prevent the press from reporting about true events and to have a court monopoly on establishing true facts. Moreover, the impugned provision would lead to absurd results if journalists had to report their positive knowledge in the subjunctive tense or use other linguistic means to qualify it as a suspicion. Otherwise, in order to come within the scope of one of the exceptional clauses under section 7b(2) of the Media Act, journalists would have to report about their inquiries indirectly, presenting them as statements made by third persons.

THE LAW

The corporate applicants complain that section 7b of the Austrian Media Act amounts to a violation of their right to freedom of expression as guaranteed by Article 10 of the Convention which provides 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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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.

The Court recalls that in proceedings originating in an application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of a concrete case before it. Its task is not to review domestic law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 23, § 54). Accordingly, by the term “victim”, Article 34 of the Convention means the person directly affected by the act or omission which is in issue. Article 34 of the Convention may not be used to found an action in the nature of an actio popularis. It may only exceptionally entitle individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, § 42; the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p. 22, § 44; see also the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, pp. 15-16, §§ 30-32).

In the present case, the corporate applicants are newspaper publishers complaining under Article 10 of the Convention about section 7b of the Media Act as amended in 1992. The Court finds that their arguments as to the negative effects of this legislation on the press and the reporting by journalists in general, do not go beyond seeking to challenge in abstracto the compatibility of Austrian law with the Convention. In the absence of a specific incident showing the direct effect of this legislation on their reporting of criminal cases, the corporate applicants cannot claim to be “victims” within the meaning of Article 34 of the Convention.

Accordingly, the complaint made by the corporate applicants is incompatible ratione personae with the provisions of the Convention.

It follows that the application is inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
 

The Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. DolléN. Bratza
RegistrarPresident

 

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