FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40284/98
by KRONE VERLAG GmbH & CoKG
against Austria
The European Court of Human Rights (First Section), sitting on 14 November 2002 as a Chamber composed of
MrsF. Tulkens, President,
MrG. Bonello,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and MrS. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 24 February 1998,
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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant company, Krone Verlag GmbH & Co KG, is the owner and publisher of the newspaper “Neue Kronen Zeitung” with its seat in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In July 1996 the newspaper “Neue Kronen Zeitung” published several articles on a case of parents abusing their daughter, in which allegations were made as to the homo-bisexual inclinations of the parents, Ms and Mr K. Subsequently Ms K. filed a compensation claim under the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen) against the applicant company.
On 30 July 1996 the court ordered the applicant company under section 8a § 5 of the Media Act to publish a notice concerning the institution of the proceedings. On 4 September 1996 this notice was published in the “Neue Kronen Zeitung”.
On 5 and 10 September 1996 Ms K. filed enforcement requests (Durchsetzungsanträge) under section 20 of the Media Act against the applicant company. Referring to section 13 § 3 of the Media Act, which requires a notice of the same “publishing value” (Veröffentlichungswert) as the original message, she argued that the notice of 4 September 1996 was smaller than the articles of July 1996 and was, thus, not published in due form.
On 17 December 1996 the Regional Court dismissed Ms K.’s request. The court found that the notice of 4 September 1996, though somewhat smaller, had the same “attention value” (Auffälligkeitswert) and, thus, the same “publishing value” as the articles.
With the Vienna Court of Appeal’s (Oberlandesgericht) decision of 14 July 1997 the compensation proceedings were finally determined. The court ordered the applicant company to pay ATS 115,000 in compensation to Ms K. for breach of the presumption of innocence in its reporting about Ms K. and to publish the sentence. It appears that the applicant company complied with these orders.
On 30 July 1997 the Court of Appeal, upon Ms K.’s appeal, quashed the Regional Court’s decision of 17 December 1996 and ordered the applicant company to pay a coercive indemnity (Geldbuße) of ATS 24,000 to Ms K., namely ATS 4,000 for each issue of the newspaper between 5 and 10 September 1996. The court considered that, in one of the disputed articles, Ms K. had been defamed even in a subtitle, whereas the notice had no subtitle. Therefore the “publishing value” was diminished.
Following this decision, Ms K. filed further enforcement requests for the period of 11 September 1996 until 4 August 1997.
On 23 September 1997 the applicant company requested that section 20 § 4 of the Media Act be applied by analogy. This provision allowed for an exemption from the imposition of coercive indemnity for the duration of appeal proceedings in case a first-instance court had imposed a coercive indemnity for an inappropriate publication of the notice - which, however, had been published in a manner close to the due form - and the respondent had appealed against this decision. The applicant company argued that after the first-instance court’s decision in its favour, finding that the notice had the same publishing value, it had not been required to publish another notice. Therefore the above rule of exemption from imposition of coercive indemnity during the appeal proceedings applied even more in its case. The applicant company further requested that section 20 § 3 of the Media Act - which, in cases of special circumstances, allows the authority to stop or remit the imposition of coercive indemnity, once the notice has been published in due form - be applied for the period of 5 to 10 September 1996.
On 27 October 1997 the Regional Court ordered the applicant company to pay ATS 508,000 to Ms K., namely ATS 4,000 for each issue of the “Neue Kronen Zeitung” between 20 September 1996 and 16 January 1997, the date of the introduction of Ms K.’s appeal against the decision of 17 December 1996. It dismissed the remainder of Ms K.’s request and the applicant company’s request under section 20 § 3 of the Media Act. The court found that section 20 § 4 of the Media Act applied by analogy for the period of the appeal proceedings, therefore no coercive indemnity had to be paid from 17 January to 4 August 1997.
On 30 January 1998 the Vienna Court of Appeal, on both parties’ appeal, quashed the Regional Court’s decision in part. It decided that the applicant company had to pay a coercive indemnity of ATS 1,304,000 to Ms K., i.e. ATS 4,000 for each issue of the newspaper between 11 September 1996 and 4 August 1997. The court considered that the applicant company could not be exempted from paying the coercive indemnity for the period of the appeal proceedings, as the notice of 4 September 1996 had not come close to a notice in due form as required by section 20 § 4 of the Media Act.
On 30 June 1998 the Procurator General’s Office (Generalprokuratur) lodged a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court. It argued that the coercive indemnity under section 20 of the Media Act was a coercive measure (Beugemittel). According to the Office, it was unreasonable to impose a coercive indemnity for the period after the first instance court’s decision of 17 December 1996, since after that decision the applicant company was to be considered as having acted in good faith when it did not publish another notice. The coercive indemnity should therefore only be imposed for the period before 17 December 1996.
On 15 September 1998 the Supreme Court dismissed the plea of nullity. It argued that the question of good faith could not be resolved under section 20 § 4 of the Media Act. Rather, the applicant company would have to commence indulgence proceedings (Nachsichtsverfahren) under section 20 § 3 of the Media Act. In such proceedings, its particular situation after the first instance decision of 17 December 1996 could be taken into account.
B. Relevant domestic law
In compensation proceedings under the Media Act, the court shall order the media company concerned to publish a short notice about the institution of the case, if it may be assumed that the compensation claim is well founded (section 8a § 5).
This notice has to have the same “publishing value” (Veröffentlichungswert) as the publication to which it refers (section 13 § 3).
If the notice was not published in due form, the plaintiff may request the court to impose a coercive indemnity on the respondent for each issue in which the notice could have been duly published, with sums of up to ATS 10,000 per issue (section 20 § 1).
Once the notice has been duly published, the coercive indemnity may be stopped or remitted on request by the respondent in cases of special circumstances (in berücksichtigungswürdigen Fällen) (section 20 § 3).
The parties have a right to appeal to the Court of Appeal against decisions imposing or remitting a coercive indemnity. In the event a coercive indemnity has been imposed for inappropriate publication of the notice and the respondent has appealed against this decision, no further coercive indemnity shall be imposed for the duration of the appeal proceedings, if the notice - whose proper publication is litigious - was published in a manner coming close to the due form (section 20 § 4).
COMPLAINT
The applicant company complains under Article 10 of the Convention that the imposition of the coercive indemnity violated its freedom of expression.
THE LAW
The applicant company complains that the imposition of the coercive indemnity violated its rights under Article 10, which, as 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 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, ....for the protection of the reputation or rights of others,....”
In the Government’s view, the decision of the Austrian courts to impose a coercive indemnity did not constitute an interference with the applicant company’s rights under Article 10. The only interference conceivable was the previous order of the Austrian courts to publish a notice. The imposition of coercive indemnity did not constitute a separate interference, it only aimed at the enforcement of earlier decisions following the applicant company’s failure to comply with a final decision.
Even considering that the imposition of coercive indemnity constituted an interference with Article 10, any such interference was justified under Article 10 § 2. The measure at issue was prescribed by law, namely by section 20 of the Media Act. It was foreseeable for the applicant company. This was implicitly conceded by the applicant company as otherwise it would not have requested, on 23 September 1997, that section 20 § 4 of the Media Act be applied by analogy. Reference to analogy only makes sense if the relevant provision is not as such applicable. The coercive indemnity served the protection of the reputation of persons who have been defamed in the media and to ensure the enforcement of decisions on the publication of a counter-statement. The Government argue that the coercive indemnity was not a fine but compensation for damage, as the money - its amount depending on the number of issues in which the judicial decision was not properly implemented - goes to the injured party and not to the State. Consequently, as the damage for a plaintiff does not stop with the first-instance judgment but continues throughout the appeal proceedings, also this period had to be taken into account when awarding payment of coercive indemnity. The potential inconvenience to pay coercive indemnity also for the duration of the appeal proceedings is inherent in the rule of law, implying the risk that, upon review, a court of appeal may quash a lower court’s decision. The Government point out finally that the coercive indemnity in the amount of ATS 4,000 per issue was not disproportionate.
This is disputed by the applicant company. It contends that the imposition of the coercive indemnity was not prescribed by law. In particular, the order to pay coercive indemnity for the duration of the appeal proceedings after the first-instance court’s decision in its favour was not foreseeable. It is incompatible with this requirement that a media company would be forced to publish another notice after a first-instance court’s decision in its favour, merely to be on the safe side in case the Court of Appeal would quash the lower court’s decision. Would the Court of Appeal then confirm the lower court’s decision, the second publication of the notice would turn out to have been unnecessary. Any such publication constitutes a considerable financial burden for a media company and, thus, a disproportionate interference with its rights to freedom of expression. The applicant company points out that, on 30 July 1997, when the Court of Appeal decided on the imposition of the coercive indemnity for the applicant company’s failure to publish in due form a notice on the institution of the compensation proceedings, it had already given the final decision in those proceedings, namely on 14 July 1997. Finally, the amount of more than ATS 1,3 million was grossly disproportionate and therefore unnecessary within the meaning of Article 10 § 2 of the Convention.
The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy