Information Note on the Court’s case-law No. 92
December 2006
Verlagsgruppe News GmbH v. Austria (no. 2) - 10520/02
Judgment 14.12.2006 [Section I]
Article 10
Article 10-1
Freedom of expression
Absolute prohibition on publishing photograph of a business magnate alongside newspaper reports on investigations into his suspected tax evasion: violation
Facts: The applicant company owns and publishes a widely-read weekly magazine. An article appeared about pending investigations on suspicions of large scale tax evasion against the managing director of a well-known enterprise, market leader in equipping police forces with pistols. His photograph was printed with the article. The article stated that he was suspected of having failed to pay taxes of up to more than 36 million euros, and that the magazine was in the possession of numerous documents concerning this suspicion which it claimed to have obtained through its own in-depth research. The most important documents were letters from the managing director's lawyers from which it followed that an attempt to murder him had taken place in Luxembourg, which had not come to the attention of the Austrian authorities or of the media at the time. The article suggested that the attempt might have been made at the instigation of one of his business partners and assumed further that the attempt was somehow linked to his network of companies which had been scrutinised by the tax authorities.
The business leader brought proceedings against the applicant company, requesting a ban on publishing his picture in connection with reports, both on the pending tax evasion proceedings against him and in relation to the attempted murder. A preliminary injunction was issued against the applicant company prohibiting it from publishing a picture of the claimant in the context of reports on charges of tax evasion against him, in so far as he was not described as a suspect, but as having committed the offence, until a final decision had been taken in the main injunction proceedings. The request was dismissed for the remainder (attempted murder issue). The Supreme Court widened the scope of the preliminary injunction to the extent that the applicant company was prohibited from publishing any pictures of the claimant in the context of reports on the tax evasion proceedings pending against him, irrespective of the accompanying text. The Supreme Court took arguments that tax evasion was a lesser indictable offence than a crime and that tax investigations were covered by the fiscal secret.
Law: The applicant, the owner and publisher of a widely-read weekly, has the duty to impart – in a manner consistent with its obligations and responsibilities and in respect of the reputation or the rights of others – information and ideas on all matters of public interest. The claimant – a business magnate owning and managing one of the country's most prestigious enterprises – is by his very position a public figure. Further, the article reported on a matter of public interest, namely on pending investigations on suspicion of tax evasion, informing on the recent search of his premises and giving some information on the network of his companies and the alleged practices of tax evasion. It also indicated that there could be a link between this business network and an attempted murder which had taken place the year before. Articles of this kind are capable of contributing to a public debate on the integrity of business leaders, on illegal business practices and the functioning of the justice system in respect of economic offences.
Besides, the Court is not convinced by the Supreme Court's approach to the nature of the offence and considers, on the contrary, that the offence at stake, tax evasion of a very substantial amount, is of a serious nature. The Supreme Court's approach excluded any weighing of interests between the public interest to have the information on the proceedings for tax evasion pending against the business leader accompanied by his picture against the latter's interest to have his identity protected. However, the Court stressed that there is little scope for an absolute prohibition to publish a public person's picture in an article contributing to a public debate. Neither is the Court convinced by the Supreme Court's argument relating to the secrecy of the investigations for tax evasion: the applicant remained free to publish reports on the investigations pending despite their secret nature and to publish the impugned picture when reporting on the attempted murder issue. Therefore, the reasons adduced by the Supreme Court though being “relevant” were not “sufficient”. Thus, the absolute prohibition to publish the picture of the claimant, alongside the article reporting on the pending investigations against him, was not proportionate to the legitimate aim pursued, namely the protection of his reputation and rights.
Conclusion: violation (six votes to one).
Article 41 – EUR 1,720 for pecuniary damage, corresponding to the costs which the applicant company was ordered to pay in the domestic proceedings.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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