Journalists and publishing companies
II. RELEVANT DOMESTIC LAW 32. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation ” has been defined in Article 111 of the Criminal Code ( Strafgesetzbuch ), as follows: “ ( 1 ) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in 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. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 33. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual ’ s life. In the version in force at the material time, it read as follows: “(1) If the strictly personal sphere of an individual ’ s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ... (2) The right referred to in paragraph 1 above shall not apply where: (i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies; (ii) the statements published are true and are directly related to public life; (iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or (iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant company complained that the courts ’ decision in the proceedings under the Media Act and under the Civil Code violated its right to freedom of expression as provided in Article 10 of the Convention, which 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 35. The Government contested that argument. A. Admissibility 1. The proceedings under the Civil Code 36. The Court observes that in the proceedings brought by Mr Scheibner under the Civil Code the applicant company entered into a settlement undertaking to refrain from repeating the impugned statement. In a recent case with a similar situation the Court has found that an applicant who entered into such a settlement had accepted the limitation of its right to freedom of expression and renounced the use of available remedies in respect of the complaint. Therefore the applicant company could not claim to be a victim within the meaning of Article 34 of the alleged violation (see Standard Verlags GmbH v. Austria, no. 13071/03, § § 33-34, 2 November 2006). The Court sees no reason to come to another conclusion in the present case. Therefore the complaint has to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. The proceedings under the Media Act 37. As far as the complaint relates to the two sets of proceedings under the Media Act, one brought by Mr Klestil and Ms Klestil-Löffler and the other by Mr Scheibner, the Court notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 38. The applicant company maintained that the courts had transgressed their margin of appreciation. It contended in particular that all three claimants were public figures. Mr Klestil and Mrs Klestil-Löffler had exposed their private life to the media like no presidential couple before. Mr Scheibner was a leading politician of the Freedom Party. The section “ Gossip mongering ” in which the article at issue had been published provided readers with a look behind the scenes of politics and often contained humorous or satirical contributions. In the applicant company ’ s view the courts had disregarded the satirical nature of the article and its main aim, namely to criticise the attitudes of the so called upper crust of Viennese society which had nothing else to do than to disseminate an absurd rumour about the Federal President ’ s private life. Finally the applicant company claimed that the sanctions imposed on it were disproportionate. 39. Moreover, the applicant company complained that the courts had refused to take evidence on the existence of a rumour about the presidential couple ’ s divorce proposed by it on the ground that the proof of truth was not available where the strictly personal sphere of a person ’ s private life was concerned. 40. The Government asserted that in a case like the present one the State had an obligation to strike a fair balance between the right to private and family life, as guaranteed by Article 8, on the one hand and the right to freedom of expression, provided for in Article 10, on the other. A decisive element in striking that balance was to what extent the incriminated text contributed to a debate of public interest. In the present case, the Austrian courts correctly assessed the impugned article as alleging that Ms Klestil ‑ Löffler intended to divorce and as depicting her and Mr Scheibner as adulterers and Mr Klestil as a deceived husband. As all three of them were well-known public figures the limits of acceptable reporting were wider than for private individuals. However, the allegation of adulterous conduct transgressed these limits. There was no public interest in the rumours reported by the article, which had no connection with the public life or political function of any of the persons concerned. This was all the more so, as Mr Klestil ’ s second and last term as Federal President was coming to an end at the time when the article was published. 41. Furthermore the Government argued that the courts had rightly dismissed the applicant company ’ s defence that the article was of a satirical nature and had merely intended to criticise a certain “upper crust of society” for spreading rumours. Even if one accepted this aim, the actual victims were those whose private life was exposed. In addition the article was counter-productive as it contributed itself to spreading the rumour at issue, while pretending to criticise those who had first launched it. 2. The Court ’ s assessment 42. The Court finds that the domestic courts ’ judgments given in the two sets of proceedings under the Media Act constituted an interference with the applicant ’ s right to freedom of expression. 43. It was not in dispute that that interference was “prescribed by law”, namely by sections 6 and 7 of the Media Act, nor that it served a legitimate aim, namely the protection of the rights and reputation of others. The parties ’ submissions concentrated on whether the interference had been “necessary in a democratic society”. 44. The Court reiterates the fundamental principles established by its case-law on Article 10 (see, among many others, Éditions Plon v. France, no. 58184/00, §§ 42 and 43, ECHR 2004-IV). “42. ... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. ... 43. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. In particular, it has held that although the press must not overstep certain bounds, for example in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). The national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “ public watchdog ” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59). ... ” 45. The Court observes that the impugned article dealt with rumours about the claimants ’ private life and, in the case of Mr Klestil and Ms Klestil - Löffler, also their family life. 46. In this context the Court reiterates that in cases like the present one, in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, in particular, Von Hannover v. Germany, no. 59320/00, § 60, ECHR 2004 ‑ VI; see also Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001 ‑ I ). 47. Another important factor to be taken into account is whether the person concerned exercised any official functions. The Court has underlined that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions and reporting details of the private life of an individual who does not exercise official functions ( see Von Hannover, cited above, §§ 62-63). 48. The Court has accepted that the right of the public to be informed can in certain special circumstances even extend to aspects of the private life of public figures, particularly where politicians are concerned ( see Von Hannover, cited above, § 64, with reference to Editions Plon, cited above, § 53 ). However, anyone, even if they are known to the general public, must be able to enjoy a “ legitimate expectation ” of protection of and respect for their private life ( see Von Hannover, cited above, § 69). 49. In the present case, it is not in dispute that all three claimants in the proceedings under the Media Act were public figures. At the time of publication of the impugned article, Mr Klestil was the Federal President of Austria, Mrs Klestil-Loeffler, his wife, was herself a high-ranking official at the Foreign Ministry and Mr Scheibner was a leading politician of the Freedom Party. The parties ’ opinions differ in particular as to whether the article made any contribution to a debate of general interest. 50. The Court observes in this context that section 7 of the Media Act protects the strictly personal sphere of any person ’ s life against being discussed or portrayed in a way liable to undermine him or her in public, except where the statements published are true and directly related to public life. 51. In applying section 7 of the Media Act in the present case, the domestic courts ordered the applicant company to pay compensation to the claimants for violating their strictly personal sphere. They found that the impugned article had spread rumours about the presidential couple ’ s private life, alleging that Ms Klestil-Loeffler intended to divorce and insinuating that Mr Scheibner possibly had an adulterous relationship with Ms Klestil-Löffler. They dismissed the applicant company ’ s argument that the article was related to public life. In that respect, they distinguished a politician ’ s alleged marital problems from his or her state of health which, though belonging to the personal sphere, can have a bearing on the exercise of his or her functions. They added that the presidential couple ’ s private life had not played a role during his second term in office. In respect of Mr Scheibner they found that rumours about an alleged relationship between him and the First Lady did not have any link with his public functions and responsibilities. Consequently, since Article 7 of the Media Act prohibits reporting on a person ’ s strictly personal sphere in absolute terms if there is no direct link with public life, the courts refused to take evidence on whether the rumours at issue actually existed at the time. 52. The Court finds that the reasons given by the Austrian courts were “relevant” and “sufficient” to justify the interference. It observes that the courts fully recognised that the present case involved a conflict between the right to impart ideas and the right of others to protection of their private life. It cannot find that they failed properly to balance the various interests concerned. In particular the courts duly considered the claimants ’ status as public figures but found that the article at issue failed to contribute to any debate of general interest. They made a convincing distinction between information concerning the health of a politician which may in certain circumstances be a issue of public concern (see, in particular, Editions Plon, cited above, § 53) and idle gossip about the state of his or her marriage or alleged extra-marital relationships. The Court agrees that the latter does not contribute to any public debate in respect of which the press has to fulfil its role of “public watchdog”, but merely serves to satisfy the curiosity of a certain readership (see, mutatis mutandis, Von Hannover, cited above, § 65). 53. As far as the applicant company complains that it was not allowed to prove that such rumours as reported by the article were circulating at the time, the Court observes that while reporting on true facts about a politician ’ s or other public person ’ s private life may be admissible in certain circumstances, even persons known to the public have a legitimate expectation of protection of and respect for their private life. The Court notes that at no time did the applicant company allege that the rumours were true. However, even public figures may legitimately expect to be protected against the propagation of unfounded rumours relating to intimate aspects of their private life. 54. Having regard to these considerations, the Court finds the domestic courts did not transgress their margin of appreciation when interfering with the applicant company ’ s right to freedom of expression. 55. Furthermore the Court considers that the measures imposed on the applicant company, namely the order to pay compensation to the claimants and to publish the judgments were not disproportionate to the legitimate aim. In sum, the interference with the applicant company ’ s right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation and rights of others within the meaning of Article 10 § 2 of the Convention. 56. There has consequently been no violation of Article 10 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in the present case. Considering that even public figures could legitimately expect to be protected against the propagation of rumours relating to intimate aspects of their private life, it found that the interference in question had been necessary in a democratic society for the protection of the reputation and rights of others. Furthermore, the measures imposed on the applicant company had not been disproportionate.