FIRST SECTION
DECISION
Application no. 22820/06
STANDARD MEDIEN AG
against Austria
The European Court of Human Rights (First Section), sitting on 22 January 2013 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 Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 30 May 2006,
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
1. The applicant company, Standard Medien AG, is the owner of an Internet site that publishes daily news. It was represented before the Court by Ms M. Windhager, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Helmut Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
A. The circumstances of the case
1. The publication at issue, its background and the proceedings giving rise to the application
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The Kronen Zeitung is an Austrian daily newspaper. At the time of the events it was owned by Mr Hans Dichand, an Austrian national, and WAZ, a German newspaper-publishing company. WAZ was represented on the Kronen Zeitung management board by Mr F. Dragon, who had been the newspaper’s co-editor-in-chief for many years. When Mr H. Dichand appointed his son, Mr C. Dichand, as editor-in-chief – allegedly without seeking the consent of the other owner, WAZ – there were various conflicts and disputes between the two owners. In the course of those disputes WAZ was accused of spying on Mr H. Dichand’s other son, Mr M. Dichand. Furthermore, the Dichand family claimed that the newspaper’s headquarters had been burgled. It appears that security cameras had filmed the night porter illicitly searching Mr H. Dichand’s office.
4. On 15 September 2004 the applicant company published an online article, quoting Mr F. Dragon, about the conflict between the two owners of the Kronen Zeitung. It was headlined “Detectives and burglaries intensify the Krone conflict” (“Detektive und Einbrüche verstärken “Krone”-Konflikt”). The relevant parts read as follows:
“... ‘Today, representatives of the Dichand family attempted in various forums (Gremien) to make it appear as though WAZ had somehow been involved in one or perhaps more burglaries reported by Dichand’, Dragon said on Wednesday. This ‘unfounded attempt to provoke a name-and-shame campaign’ will be opposed ‘using every available legal means ...’”
5. Referring to the above statements, Mr H. Dichand and his two sons instituted proceedings against Mr F. Dragon, claiming compensation and demanding publication of the subsequent judgment by the Vienna Regional Criminal Court (Landesgericht) under sections 8a and 6 of the Media Act (Mediengesetz).
6. On 3 February 2005 the Vienna Regional Criminal Court found Mr F. Dragon guilty of defamation (Üble Nachrede), imposed a fine on him and ordered him to pay the costs of the proceedings. It noted that a media offence (Medieninhaltsdelikt) such as this could not have been committed unless the defamatory statement had been published on the applicant company’s news website, and thus found the applicant company jointly and severally liable (Solidarhaftung) for the fine and the costs, pursuant to section 35 of the Media Act. Furthermore, since the offence had been committed through the media, it ordered the applicant company to publish a summary of the judgment.
7. On 30 May 2005 the applicant company lodged an appeal against the order to publish a summary of the judgment on its website. It argued that the article had merely quoted a specific statement made by an individual, Mr F. Dragon, and that there had been an overriding public interest in disseminating that statement. Therefore, this case fell under the exception provided for in section 6(4) of the Media Act, under which no claim to compensation arose. Consequently, it was not appropriate to order the publication of the judgment because the applicant company had merely published “a truthful reproduction of a statement by a third person” within the meaning of that provision. Moreover, since the court had failed to apply that provision, there had been a violation of the applicant company’s rights under Article 10 of the Convention.
8. On 7 December 2005 the Vienna Court of Appeal upheld the decision of the Vienna Regional Criminal Court, finding that, even if the article was covered by the citation rule under section 6(4) of the Media Act, the Regional Court could nevertheless order that the judgment be published because the decisive criterion for ordering its publication was the objective existence of elements of an offence (Tatbestandsmerkmale).
2. Reopening of the proceedings following communication of the application
9. Following communication of the application in the present case, the Government informed the Court that the Procurator General’s Office (Generalprokuratur) had lodged with the Supreme Court (Oberster Gerichtshof) a plea of nullity for the preservation of the law.
10. In a judgment of 4 May 2011 the Supreme Court set aside the Court of Appeal’s judgment of 7 December 2005 in so far as it had dismissed the applicant company’s appeal, finding that the Court of Appeal’s decision had breached Article 10 of the Convention and section 34 of the Media Act. The Supreme Court remitted the case to the Court of Appeal for a fresh decision on the appeal. It found that Article 10 of the Convention required that the publication of a judgment in cases such as the present one should not be ordered if it concerned a truthful statement by a third person, the publication of which would contribute to a public discussion. It was for the Court of Appeal to establish whether those conditions were fulfilled by the article published by the applicant company.
11. In the reopened proceedings on 5 September 2011, the Vienna Court of Appeal granted the applicant company’s appeal and quashed the order to publish a summary of the judgment on its Internet site. It also quashed, ex officio, the finding that the applicant company was jointly and severally liable for the fine and the costs, and ordered the plaintiff to bear the applicant company’s costs of proceedings.
12. In February 2012 the Republic of Austria, represented by the Attorney General’s department (Finanzprokuratur), concluded an agreement with the applicant company by which the latter received reimbursement of the costs for the publication of the judgment ordered on 3 February 2005.
B. Relevant domestic law
1. The Criminal Code
13. Article 111 of the Criminal Code (Strafgesetzbuch) reads as follows:
“1. Anyone who, in such a way that it may be perceived by a third party, accuses another person of having a contemptible character or attitude, or of behaving contrary to honour or morality and in such a way as to make him appear contemptible or otherwise lower his 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. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
2. The Media Act
14. A media offence (Medieninhaltsdelikt) is defined as “[an] act entailing liability to a judicial penalty, committed through the content of a publication medium, consisting in a communication or performance aimed at a relatively large number of persons” (section 1(12) of the Media Act (Mediengesetz)). Under the Media Act, specific measures in the event of a media offence include the publication of the judgment or a counter-statement (sections 12 and 34) and the joint and several liability of the media owner (section 35).
15. Section 34(1) of the Media Act, as in force at the time of the events, reads as follows:
“In a judgment given in criminal proceedings on a media offence, the court must order the publication of those parts of the judgment which are necessary for informing the public of the offence and its prosecution, if the plaintiff so requests. The parts of the judgment to be published may be specified in the operative part of the judgment. The court may replace the wording of the judgment by a summary, if this facilitates the understanding of its contents or reduces the extent of the publication."
16. Section 35 of the Media Act, as in force at the time of the events, reads as follows:
“Liability
35(1) In criminal judgments concerning media offences committed through the content of a publication, it must be stated that owners of periodical media bear joint and several liability, together with the convicted person, for the fine imposed and the procedural costs incurred, including the costs of the publication of the judgment.
(2) If, after the pronouncement of the judgment in which such liability is found to exist ... the owner of the medium changes, the new owner is jointly and severally liable together with the former owner.
(3) Imprisonment in default ... can take place only if the fine cannot be collected from the media owner.”
Section 6 of the Media Act, at the time of the events, reads as follows:
“6(1) If the factual elements of the offence(s) of defamation .... are established in a particular publication, the person affected shall be entitled to claim compensation from the owner of the publication for the damage sustained. ...”
(2) No claim shall arise under subsection (1) in the event of ...
(4) ... a truthful reproduction of a statement by a third person if there was a predominant public interest in the knowledge of the statement quoted.
COMPLAINT
17. In its initial application the applicant company complained under Article 10 of the Convention that its right to freedom of expression and to quote statements of third persons were infringed by the Austrian court’s decisions to make it jointly and severally liable for the fine and costs, and to order it to publish the judgment.
THE LAW
18. In their letter of 10 April 2012, the Government informed the Court of the outcome of the reopened domestic proceedings, asking the Court to strike the application out of its list of cases. In its letter of 12 March 2012, the applicant company had already stated that it could agree, provided that all costs incurred in the proceedings were reimbursed.
19. The Court observes that in recent comparable cases it decided to strike the applications out of its list, considering that the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention (see Verlagsgruppe News v. Austria (dec.), no. 43521/06, 19 October 2009; Standard Verlags GmbH v. Austria (dec.), no.17928/05, 28 January 2010; Standard Verlags GmbH and Rottenberg v. Austria (dec.), no. 36409/04, 1 July 2010; and Grüne Alternative Wien v. Austria (dec.), no. 13281/02, 29 November 2011).
20. Article 37 § 1 of the Convention, in so far as relevant, provides as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved;
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
21. In order to conclude that a matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for an applicant to pursue the application, the Court reiterates that it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002, and Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007).
22. The Court observes that the judgment complained of, in so far as it concerned the applicant company, was set aside by the Supreme Court’s judgment of 4 May 2011, by which the case was remitted to the Vienna Court of Appeal for a fresh hearing of the applicant company’s appeal against the Regional Court’s judgment of 3 February 2005.
23. In the reopened proceedings, the Vienna Court of Appeal followed the Supreme Court’s line of reasoning and, in its judgment of 5 September 2011, granted the applicant company’s appeal. It quashed the order to publish a summary of the judgment on its Internet site and, ex officio, also quashed the finding that the applicant company was jointly and severally liable for the fine and the costs. It also ordered the plaintiff to bear the applicant company’s costs of proceedings.
24. The applicants have thus already obtained a rehearing of the case, an outcome which would normally follow from a finding of a violation of the Convention by the Court pursuant to Article 363a of the Code of Criminal Procedure, which also applies in proceedings under the Media Act. A further examination of the present case by the Court is therefore not required.
25. As to the question whether the effects of a possible violation of the Convention have been redressed, the Court considers that this is the case, as the proceedings have been terminated in the applicant company’s favour. In respect of the applicant company’s claim for costs of the domestic proceedings in the amount of 3,381.49 euros (EUR), the Court observes that the Court of Appeal, in its judgment of 5 September 2011, ordered the plaintiff to bear the applicant company’s procedural costs. The applicant company has not shown that the costs it is now claiming were not covered by that order. There is accordingly no room for making such an award.
26. Furthermore, the Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
27. The applicant company claimed that it had not received compensation for the costs of the Convention proceedings, for which it claimed EUR 7,579.70, plus value-added tax. Pursuant to Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list.
28. The Court finds it appropriate, given the circumstances of the case, to make an award in respect of the costs of the Convention proceedings (see Verlagsgruppe News; Standard Verlags GmbH; Standard Verlags GmbH and Rottenberg; and Grüne Alternative Wien, all cited above). The Government commented that the applicant company’s claim for costs was excessive. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that, in the proceedings on the present application, no exchange of observations on the admissibility and merits of the application has taken place. Regard being had to the documents in its possession, to awards in similar cases and to the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 under this head, plus any tax that may be chargeable to the applicant company on that amount. Furthermore, the Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases;
Decides
(a) that the Government is to pay the applicant company, within three months from the date of this decision, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy