FIFTH SECTION
DECISION
Application no. 52205/11
VERLAGSGRUPPE HANDELSBLATT GMBH & CO. KG
against Germany
The European Court of Human Rights (Fifth Section), sitting on 15 March 2016 as a Chamber composed of:
Ganna Yudkivska, President,
Angelika Nußberger,
Khanlar Hajiyev,
André Potocki,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 18 August 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Verlagsgruppe Handelsblatt GmbH & Co. KG, was formerly known as Verlagsgruppe Handelsblatt GmbH, a German private limited company whose registered office was in Düsseldorf. It published the weekly business news magazine Wirtschaftswoche. In 2010 it was converted into a private limited partnership and the company seized to exist. The applicant was represented before the Court by Mr R. Mann, a lawyer practising in Hamburg.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Photomontage in issue
3. In its edition of 14 September 2000, Wirtschaftswoche published an article about the CEO of German Telecom (Deutsche Telekom AG), Dr Ron Sommer. It was entitled “Almighty Sommer” (Allmächtiger Sommer) and critically reviewed his management style and the consequences for German Telecom.
4. The article was accompanied by a photomontage, which was shown in different sizes four times throughout the entire magazine. The photomontage was a crumbling magenta-coloured “T”, the logo of German Telecom, with a person sitting on top of it with Dr Sommer’s face. The picture was put together using the body of a model in a sitting position and a photograph of Dr Sommer’s head. The applicant retrieved the photograph of the head from the image database of the Associated Press. To fit the body and head together, the photograph of the head was vertically stretched and horizontally shrunk.
2. Interim proceedings
5. Dr Sommer applied for an interim injunction to stop any further publication of the photomontage. He argued that by planting his head on a different body and by the fact that his head appeared more corpulent in the photomontage than in real life, his reputation was being damaged. He stated, in particular, that his cheeks appeared longer, his chin plumper and his neck shorter.
6. On 26 September 2000 the Hamburg Regional Court granted the interim injunction, without hearing the applicant’s arguments.
7. On 3 November 2000, on an objection by the applicant, the Hamburg Regional Court set the interim injunction aside. It found that the photomontage constituted a value judgment in the form of a satirical illustration, which conveyed the criticism expressed in the attached article. The minor discrepancies and the “wrong” body had not infringed Dr Sommer’s personality rights to such a degree as to justify an interference with the applicant’s freedom of expression. The court also stated that it was not its task to assess whether the applicant could have created a “better”, less infringing photomontage, since the form of expression was the prerogative of the author or artist. Furthermore, the satirical nature of the illustration was apparent, as the average reader would not consider that Dr Sommer sitting on a crumbling “T” replicated real life.
8. On 30 January 2001 the Hanseatic Court of Appeal reinstated the interim injunction. It held that the illustration had to be divided between the “T” and the depicted person. While it was apparent that the “T” part was a satirical illustration, the manipulation of the head, namely the stretching and shrinking, was not so obvious. Consequently, the average reader would expect the picture of Dr Sommer to depict reality. Owing to this “untrue” illustration, the personality rights of Dr Sommer overrode the applicant’s freedom of expression.
3. Main proceedings
9. On 6 July 2001 the Hamburg Regional Court upheld the interim injunction preventing any further publication of the photomontage.
10. On 12 February 2002 the Hanseatic Court of Appeal dismissed an appeal brought by the applicant. It reiterated that the manipulated photograph of Dr Sommer showed him in an untrue, unfavourable and disadvantageous light. Nevertheless, since the manipulation was so slight, the average reader would not realise the distortion. The court found that Dr Sommer did not have to accept this untrue and manipulated depiction of himself in the press.
11. On 30 September 2003 the Federal Court of Justice overturned the Court of Appeal’s judgment. It found that the satirical illustration could not be broken down into individual components, but had to be assessed as a whole. Therefore, the satirical nature of the illustration was apparent and a typical reader would not expect to see a depiction of reality. Given that the extent of the alteration had been so slight, the applicant’s freedom of expression overrode the personality rights of Dr Sommer, who had to accept the satirical illustration of himself. Furthermore, the court found that the publication of the photograph had not infringed Dr Sommer’s right to protection of his image because, as the CEO of a well-known former State‑owned company with a monopoly, he was actually a “relative figure of contemporary society” (relative Person der Zeitgeschichte). Given that the shares of the company were intensely advertised as “people’s shares” (Volksaktie) and that the company still had a leading market share the management style of Dr Sommer and the consequences for the company were an issue of general interest. Consequently, the satirical illustration, including the publication of his photograph attached to an article that contributed to a debate of general interest, was legitimate.
12. On 14 February 2005 the Federal Constitutional Court repealed the Federal Court of Justice’s judgment and remitted the case (1 BvR 240/04). The court held that personality rights generally also included protection from the publication of technically manipulated photographs. In the context of satirical illustrations, it had to be established whether the manipulation had its own satirical nature or was technically necessary for the composition of the illustration, or whether the alterations were negligible. Applying these principles to the photomontage in question, the court found that the applicants had used a photograph of Dr Sommer to depict reality and make the person identifiable, and that the illustration of the person had no satirical value in itself. Therefore, the untrue photograph could only be justified if the alterations had been technically necessary or negligible. This however had to be ascertained by the lower courts.
13. On 8 November 2005 the Federal Court of Justice remitted the case to the Court of Appeal, as the latter had not established whether the alterations had been technical necessary or negligible.
14. On 7 February 2006 the Court of Appeal appointed an expert to analyse the manipulations of the original photograph of Dr Sommer and establish to what extent it had been altered. The expert established that the head had been vertically stretched by 8.7% and horizontally shrunk by 4.5%. He furthermore compiled his own photomontage that showed that the head could have been fitted to the body without the above-mentioned distortion being made. Consequently, he came to the conclusion that the manipulation had not been technically necessary.
15. On 30 October 2007 the Court of Appeal dismissed the appeal by the applicant and upheld the original interim injunction, preventing any further publication of the photomontage. The court found that the unnecessary alterations of the photograph conveyed an untrue message regarding the appearance of Dr Sommer. Because the manipulation had not been negligible and had led to an unfavourable and negative presentation of Dr Sommer, his general personality rights had been infringed. This infraction could not be justified by the applicant’s freedom of expression.
16. On 28 October 2008 the Federal Court of Justice dismissed an appeal by the applicant against the refusal of leave to appeal on points of law.
17. On 15 February 2011 the Federal Constitutional Court refused to admit for adjudication a constitutional complaint brought by the applicant, without providing reasons (1 BvR 3349/08).
COMPLAINT
18. The applicant complained under Article 10 of the Convention about the injunction preventing any further publication of the photomontage of Dr Ron Sommer.
THE LAW
19. The applicant complained that the injunction violated its journalistic freedom as part of the right to freedom of expression. It relied on Article 10 of the Convention. The relevant parts provide:
Article 10
“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 the reputation or rights of others ...”
20. The applicant argued that the injunction had been disproportionate, since the manipulation of photographs was an inherent feature of any satirical illustration or photomontage. Consequently, justified alterations should not be limited to technically necessary manipulations or those that were clearly recognisable. Furthermore, by establishing with the help of an alternative photomontage by an expert whether the alterations had been technically necessary, the national courts had substituted the applicant’s artistic and journalistic choices regarding techniques of presentation.
21. The Court notes at the outset that the injunction order constituted an interference with the applicant’s right to freedom of expression and was based on the relevant provisions of the German Civil Code. It further notes that it was aimed at the protection of the reputation and rights of others. Therefore, the Court will limit its assessment to the question of whether the injunction order was “necessary in a democratic society”.
22. The Court further notes that the present case requires an examination whether a fair balance has been struck between the applicant’s right to freedom of expression as guaranteed by Article 10 of the Convention and Dr Sommer’s right to protection of reputation under Article 8. Having considered on numerous occasions similar disputes requiring an examination of the fair balance, the Court refers to the general principles relating to each of the rights in question established in its case-law (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-92, 10 November 2015; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-88, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-107, 7 February 2012).
23. The Court has, in particular, identified the following relevant criteria in the context of balancing the competing rights: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the severity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés, § 93; Axel Springer AG, §§ 90-95; and Von Hannover (no. 2), §§ 109-113, all cited above).
24. Turning to the facts of the present case, the Court observes that the photomontage was embedded in an article regarding the management style of Dr Sommer and the consequences for German Telecom. German Telecom, a former State-owned monopoly of telephone and internet services, was converted into a stock corporation and its shares were intensely advertised as “people’s shares” (Volksaktie). Given that the company still had a leading market share, the Court accepts that the management style of the company’s CEO was an issue of public interest.
25. Regarding the degree of notoriety of the person concerned in the publication, the Court has previously stated that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where he is mainly known at national level (see Axel Springer AG v. Germany, cited above, § 98). In the present case, the Federal Court of Justice came to the conclusion that Dr Sommer was a “relative figure of contemporary society”, due to his position as CEO of German Telecom. This assessment is in compliance with the Court’s case-law, as it has previously held that a manager of one of the country’s most prestigious enterprises can be considered by his very position in society to be a public figure (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).
26. The Court further observes, regarding the subject of the news report, that the article in issue concerned the professional conduct of Dr Sommer and that the photograph used showed merely his head, but did not reveal any private details as such. Furthermore, the original photograph was already in existence and had been retrieved from the image database of the Associated Press. In this context, the Court also notes that Dr Sommer did not complain to the national courts about the publication of his photograph as such, only about its manipulation.
27. As far as the content and form of the publication are concerned, the Court notes that this criterion is, in the present case, closely connected to the veracity of the information and therefore both criteria have to be assessed together. The Court observes that the photomontage in issue conveyed the message of the article in a satirical way. It transferred the criticism of Dr Sommer’s autocratic management style and the possible consequences for the company by showing him sitting carefree on top of a crumbling “T”, the logo of German Telecom. However, the Court also observes that the Federal Constitutional Court found that the alterations of Dr Sommer’s head did not point towards the satirical message of the photomontage, but that the applicant had used a photograph of him to depict reality and make the person identifiable. Furthermore, the appointed expert established that the photograph of Dr Sommer’s head had been vertically stretched by 8.7% and horizontally shrunk by 4.5%. Based on the conclusion that the depiction of the person in the illustration had had no separate satirical value but appeared to replicate reality, the Court of Appeal established that the manipulation was a false representation of Dr Sommer. It further considered this untrue, unfavourable and disadvantageous depiction noticeable but not technically necessary. Consequently, the national courts concluded that the manipulation had reached a sufficient level of seriousness to constitute a violation of Dr Sommer’s right to protection of reputation. The Court sees no reason to disagree with the national courts’ finding that, for an ordinary reader, the manipulation was noticeable and Dr Sommer was perceived in an untrue and unfavourable light. Therefore, the Court considers the conclusion that the photomontage had reached a sufficient level of seriousness to constitute a violation of the right to protection of reputation not unreasonable (see, mutatis mutandis, Von Hannover v. Germany (no. 3), no. 8772/10, § 52, 19 September 2013).
28. Regarding, lastly, the severity of the sanctions imposed on the applicant, the Court considers that, although every sanction is capable of having a chilling effect on an applicant, in the present case the sanctions imposed were lenient, as the national courts only ordered the applicant to refrain from any further publication.
29. The Court observes that the national courts carefully balanced the right of the applicant to freedom of expression against the right of Dr Sommer to respect for his private life and attached fundamental importance to the veracity of the message conveyed by the photomontage, the degree of manipulation and the technical necessity of the alterations. Therefore, the Court finds reason to reiterate that, although opinions may differ on the outcome of the judgment, where a balancing exercise was undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court requires strong reasons to substitute its view for that of the domestic courts (see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014; with references to Axel Springer AG, § 88; and Von Hannover (no. 2), § 107, both cited above).
30. In these circumstances and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that there are no strong reasons to substitute its view for that of the domestic courts, and that the latter have not failed to comply with their obligations under Article 10 of the Convention.
31. It follows that there is no appearance of a violation. The application is therefore inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Done in English and notified in writing on 7 April 2016.
Claudia WesterdiekGanna Yudkivska
RegistrarPresident
Full & Egal Universal Law Academy