Information Note on the Court’s case-law 261
April 2022
Mediengruppe Österreich GmbH v. Austria - 37713/18
Judgment 26.4.2022 [Section IV]
Article 10
Article 10-1
Freedom of expression
Newspaper prohibited from publishing image with “convicted neo-Nazi” caption, 20 years after plaintiff’s conviction, since expunged, given his loss of notoriety and no further criminal conduct: no violation
Facts – The applicant company (applicant) is the owner of the daily newspaper Österreich. During the 2016 run-off federal presidential elections, it published an article on the political circles of a presidential candidate, N.H., accompanied by a photograph of H.S. who had been convicted of neo-Nazi activities in 1995 under the National Socialist Prohibition Act. H.S. had led a crime-free discrete life since his release from prison in 1999 and his conviction had meanwhile been deleted from his criminal record. H.S. successfully brought civil proceedings against the applicant which was prohibited from publishing H.S.’s photograph if he was called a “convicted neo-Nazi” in the accompanying text. H.S.’s claim for compensation for non-pecuniary damage was dismissed.
Law – Article 10: The domestic courts’ judgments had constituted an interference with the applicant company’s right to freedom of expression which had been “prescribed by law” and served the legitimate aim of the protecting the rights and reputation of others, in particular the right to respect for H.S.’s private life. The main question was thus whether the domestic courts had struck a fair balance between the competing rights at stake having regard to the following applicable criteria.
(a) Contribution to a debate of general interest – The overall subject of the article – namely the fact that N.H. had an office manager around him, H.S.’s brother, who – at least in the past – had contacts with persons who had aimed at destroying the Austrian constitutional order, must be considered as having been of particular public interest at the time of its publication. The article had appeared at a delicate point during the presidential election in 2016 after the Constitutional Court had ruled unconstitutional a run-off ballot between the two candidates. There had also been particular public interest in the election process and the candidates at the time. There was thus little scope under Article 10 § 2 to restrict the applicant company’s right to report on N.H.’s election campaign. Notwithstanding, the impugned article had not alleged that there had been any direct link between N.H. and H.S., or that H.S. had played any role in the election campaign. As found by the domestic courts H.S. had not been the subject of the article. They had thus concluded that publishing his photograph in a report on N.H.’s political milieu with an incomplete accompanying text had not contributed to the debate on the election, despite the particular public interest in the report as such. The Court accepted their conclusion, considering that the applicant company had not – either in the domestic proceedings or in its submissions to the Court – alleged the existence of a direct link between N.H. and H.S.
(b) Degree of notoriety of the person affected and subject of the news report – The Court had already held in similar cases that a person expressing extremist views laid himself open to public scrutiny. This applied all the more to persons who did not only express extremist views but who committed severe crimes such as those under the Prohibition Act that ran counter to the letter and the spirit of the Convention. The Court attached particular importance to the essential function the press fulfilled in a democratic society when reporting on crimes of that kind. As found in its Österreichischer Rundfunk v. Austria judgment, in which H.S had also been the plaintiff in the proceedings giving rise to that case, H.S. had been a “well-known member of the neo-Nazi scene in Austria” and a leading member before his 1995 conviction of the Extra‑Parliamentary organisation Opposition True to the People (VAPO), which aimed at nothing less than destroying the Austrian constitutional order. The proceedings against him had been among the most important ones conducted under the Prohibition Act. Further, at the time of his trial his picture had been widely published. The article in the instant case, however, had been published more than twenty years since H.S.’s conviction and some seventeen years since his release. There was no indication in the parties’ submissions or in the documents submitted that H.S. had sought the limelight after his release. Most importantly, the applicant company had not substantiated that H.S. had still been a person of public interest and notoriety when the photograph was published. There had thus been no reason for the civil courts to carry out a detailed examination of whether he had still been such a person. While the Court supported in general the applicant company’s view that proceedings against neo-Nazis formed an important part of judicial history in Austria, it could not be automatically concluded that H.S.’s notoriety as an individual had remained the same over the years. As regards the subject matter of the report, this did not relate to the criminal proceedings against H.S. or H.S.’s role in the election campaign.
(c) Prior conduct of the person concerned – H.S. had been reintegrated in society after his release and had not had any further criminal convictions. The applicant company had not made any submissions in the civil proceedings regarding H.S.’s conduct after his conviction and had not substantiated its allegation that he had been still active in the right-wing scene. Therefore, the domestic courts had not been obliged, for the purpose of the civil claim, to assess in more detail H.S.’s conduct between his release in 1999 and the publication in 2016.
(d) Method of obtaining the information and its veracity – It was undisputed that the statement made by the applicant company in the text accompanying the photograph that H.S. was a (former) convicted neo-Nazi was true. Incidentally, this had been one of the reasons why the domestic courts had dismissed his claims for damages. The information itself could be considered common knowledge and was easily obtainable through an internet search typing in H.S.’s full name. The text had not been, however, complete in respect of an essential point: it had not informed the reader of the fact that the conviction referred to dated back to 1995, that H.S. had served his sentence and that he had not been convicted of a crime since. The information that the conviction had in the meantime been expunged from his criminal record could have been ascertained by the applicant company by consulting the Criminal Record Deletion Act.
(e) Content, form and consequences of the publication of the article – The content of the article did not concern H.S. Further, H.S. had not alleged in the domestic proceedings that there had been any tangible consequences arising from the publication in question and had thus not been granted the damages claimed.
(f) Severity of the sanction imposed – The restriction imposed on the applicant company had been of a very limited scope. It had not been sanctioned for the report or for the publication of the photograph either in civil or in criminal proceedings. It had not been prevented in general from reporting on H.S. and on the serious crimes once committed by him but had been prohibited from publishing his image if the accompanying text referred to him as a “convicted neo-Nazi”. Further, no compensation had been awarded and no fine imposed. The applicant company only had to reimburse H.S. for the costs of the domestic proceedings.
(g) The lapse of time between the conviction, the release and the publication of the article in question – Unlike in the case of Österreichischer Rundfunk, and as explicitly noted by the Supreme Court in the present case when referring to the Court’s case-law, there had been no temporal connection between H.S.’s 1995 conviction and the article’s publication in 2016. His conviction had already been deleted from his criminal record by then. While the Court did not lose sight of the severe political nature of the crime committed by H.S. before 1995 and of the danger with regard to attacks on democracy if journalists were hindered from reporting on the crimes of neo-Nazis, these considerations had to be weighed against the importance of the reintegration into society of persons who had been released from prison after serving their sentence, and their legitimate and very significant interest after a certain period of time in no longer being confronted with their conviction.
In conclusion, in the specific circumstances of the case the reasons adduced by the domestic courts had been undertaken in conformity Court’s case-law criteria and were “relevant and sufficient” to justify the interference. The Supreme Court had balanced the competing interests at stake and, by doing so, had examined the case on the basis of the criteria that were established by the Court’s own judgment in the case of Österreichischer Rundfunk. Accordingly, the Court saw no strong reasons to substitute the domestic courts’ views with its own and held that the interference had been “necessary in a democratic society”.
Conclusion: no violation (four votes to three)
(See also Österreichischer Rundfunk v. Austria, 35841/02, 7 December 2006, Legal Summary; Von Hannover v. Germany (no. 2) [GC], 40660/08 and 60641/08, 7 February 2012, Legal Summary; Axel Springer AG v. Germany [GC], 39954/08, 7 February 2012, Legal Summary; Von Hannover v. Germany (no. 3), 8772/10, 19 September 2013; Couderc and Hachette Filipacchi Associés v. France [GC], 40454/07, 10 November 2015,Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes