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FIRST SECTION
CASE OF KURIER
ZEITUNGSVERLAG UND DRUCKEREI GMBH v. AUSTRIA (No. 2)
(Application
no. 1593/06)
JUDGMENT
STRASBOURG
19 June
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kurier
Zeitungsverlag und Druckerei GmbH v. Austria (no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1593/06)
against the Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
Kurier Zeitungsverlag und Druckerei Gmbh (“the
applicant company”), a limited liability company with its
registered office in Vienna, on 30 December 2005.
- The
applicant company was represented by Giger, Ruggenthaler &
Partner, a partnership of lawyers practising in Vienna. The
Austrian Government (“the Government”) were represented
by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International
Affairs.
3. The
applicant company alleged that judgments under the Media Act ordering
it to pay damages had infringed its right to freedom of expression
under Article 10 of the Convention.
- On
20 May 2009 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is the owner and publisher of the daily newspaper
Kurier.
A. The background of the case
- In
1999 E.R. and U.W., the parents of Christian W., dissolved their
common household and concluded a provisional agreement on the custody
of Christian under which sole custody was granted to E.R., while his
brother stayed with U.W. On 13 February 2001 U.W. asked for custody
to be withdrawn from E.R. and transferred to him.
- On
22 February 2001 E.R. and U.W. agreed that pending the outcome of an
expert report custody be provisionally transferred to U.W.
(vorläufige Obsorge) and that for the time being
Christian should live with U.W., his father.
- It
appears that subsequently U.W. hindered contact between Christian and
E.R. and, in June 2002, moved to Sweden. Thereupon, by an
interlocutory decision (einstweilige Verfügung) of 26
July 2002, custody of Christian was transferred back to E.R.
- U.W.
was ordered to hand Christian over to E.R. immediately or to take him
back to Austria before 5 August 2002. That order was confirmed on
appeal on 12 September 2002 and became final.
- Thereupon
E.R. travelled to Sweden to have that decision enforced. U.W.
proposed to E.R. that they enter into an agreement on custody of
Christian, and E.R. also agreed to staying in Sweden. However, no
such agreement was finally reached. After E.R. had settled in Sweden
and found employment there, U.W., together with Christian, left
Sweden for Austria.
- On
4 November 2002, pending the outcome of the custody proceedings,
custody was temporarily transferred to the Salzburg Youth Welfare
Office. On 23 December 2003 the court dismissed U.W.’s request
for custody to be withdrawn from E.R. and transferred to him. The
decision was declared immediately enforceable.
- Subsequently,
various attempts to enforce that decision were undertaken. The
Austrian newspapers reported on these events because U.W. kept them
regularly informed and sought publicity.
- The
first attempt at enforcement, on 23 December 2003, failed because
U.W. and Christian went into hiding. U.W. had informed the media of
this step in advance. Some time later they returned. In order to
enforce the custody decision the competent court scheduled a hearing
for 15 January 2004 in the course of which Christian was to
be handed over to E.R. U.W. failed to appear at the hearing.
- Thereupon
the judge ordered that Christian be brought before the court by force
(zwangsweise Vorführung).
- When
that decision had to be enforced by court officers Christian
barricaded himself in his elementary school and, since the police
officers who intervened decided not to use physical force on the
premises of the school, this attempt also failed. These events were
also widely covered by the media because U.W. had informed them in
advance.
- After
further unsuccessful attempts the rural police (Gendarmerie)
were informed on 26 January 2004 that Christian was at his
father’s house. Court officers sent to the house noted,
however, that Christian was not in the house but, together with a
babysitter, in a car in front of it. The officers tried to take hold
of Christian but he cried and resisted. These scenes were again the
subject of widespread media coverage because they were observed and
photographed by several journalists, who had been informed and had
hurried to the spot.
- In
order to establish whether Christian had suffered injuries during the
attempt to enforce the court order, U.W. took him to the Salzburg
hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W.
and Christian were separated and on the same day Christian was handed
over to his mother, E.R., on the premises of the hospital. E.R. and
Christian have been living in Sweden since that time. This final
phase of the events was widely reported on in the media.
B. The articles which appeared in Kurier
- On
29 January 2004 an article was published in the applicant company’s
newspaper under the title “Mother flees hospital with
Christian” (“Mutter flüchtete mit Christian aus
Spital”), which read as follows.
“On Wednesday evening the child-care proceedings
concerning 8-year-old Christian from Salzburg took a very surprising
turn: Whilst father, mother and son where still talking together over
the sick bed in the afternoon, the mother suddenly snatched the boy
..., left the hospital via an underground passage, took a car that
had been left at her disposal and disappeared. “She is being
taken care of on neutral ground and the boy is getting psychological
support” said Hadmar Hufnagel from the Salzburg District Court.
The father suspects the whole affair of being rigged.
At lunch-time 33-year-old mother E.R. had arrived at the
hospital, hidden from the public. “The boy was not afraid of
his mother” says children’s advocate Andrea
Holz-Dahrenstaedt. Whereas the father claims that Christian clung to
him and tried to defend himself against his mother.
PLANNED After talks lasting an hour, the bombshell: E.R.
snatched her son when he was left unattended for a moment, and fled
the hospital. “The operation was authorised by the family
judge” explained Hufnagel. Beforehand the older son,
Christoffer, had been taken to a psychologist and afterwards to the
partner of the children’s father.
U.W. suspects the operation of being a conspiracy: “It
was planned. They were only waiting for a good opportunity.” He
claims to have heard his son crying and then there had been a sudden
silence. The father had sat for minutes next to Christian’s
empty sickbed.
Friends and relatives of the father have announced a
demonstration for today in front of the justice buildings in
Salzburg.
The whole country is now shocked about this family
dispute. It was triggered by an attempt to take Christian away from
his father on Monday. Two bailiffs tried to pull the boy into a car.
However, he defended himself, screamed, bit and clung to the car.
Since this incident Christian has remained in the children’s
hospital.
Opinions in this dispute are very divergent. The
Salzburg District Court tries to justify the conduct of the officers.
“In this case the Court has acted in the interest of the
child”, explained the President of the Regional Court, Walter
Grafinger. The bailiffs had been ordered to seize the child without
bodily harming him. This order was carried out accordingly.
However, the Linz Court of Appeal has a different view
on the matter. ‘The conduct of the officers was unacceptable
and excessive’, declares press officer Günther Wiensauer.
‘This was practically ill-treatment of a child’, said the
Vienna child and juvenile advocate Monika Pinterits.
SPECIAL TRAINING The president of the Judges’
Association, Barbara Helige, suggests special training for bailiffs.
She is a family judge and has never in her 20-year career seen such a
case. Helige does not consider it helpful for a judge to be present
when children are taken away from their parents: “This would
even reinforce the impression of State intervention.”
A report from the Ministry of Justice will be handed
over to the disciplinary commission. The Minister of Justice, Dieter
Böhmdorfer (FP), announced that an expert commission would be
established in order to avoid escalations. And in the future he wants
a judge to be present when compulsory measures are carried out.
According to the Minister, the Court in Salzburg acted
in an appropriate manner; however, the father had breached his
obligation of discretion. Disputes in childcare proceedings should
not be fought on the backs of the children.”
- A
second article was published in the applicant company’s
newspaper under the title “A dispute might now arise
about Christian’s brother” (Nun droht Streit um
Christians Bruder) on 30 January 2004. It read as follows.
“After the tumultuous events on Friday the dispute
over 8-year-old Christian from Salzburg has for the time being calmed
down. According to information from the Court, the mother and the boy
are at present accommodated and looked after in municipal housing in
Salzburg.
However, the future of little Christian, and whether and
when he will leave with his mother for Sweden, is still unclear. A
tug of war might also take place over the older brother Christoffer:
The Youth Welfare Office has custody over him for the time being in
view of the current child-care proceedings initiated by the father.
An investigation procedure is planned for the summer.
U.W. had applied for custody of all three children. In
December 2003 his custody applications for Alexander, 11, and
Christian were refused. The decision concerning Christoffer had been
postponed. Christoffer is for the time being staying with his father.
U.W. is, however, still at loss about the fact that his
ex-wife fled the hospital with Christian. ‘I cannot talk about
it’, he stuttered on Thursday, his voice trembling with tears.
Eva Weissenbacher, a friend of the family who was
present when the father and mother met at the hospital, said: ‘I
saw the mother slap the boy in the face’.
IGNORED The fact that bothered the lady from Salzburg
most was that the mother was only focussing on Christian: ‘She
has cold-shouldered Christoffer. I don’t know why she is
behaving like that and what her goal is.’
Neither the mother nor her lawyer want to answer
Kurier’s queries about this incident. Hadmar Hufnagel,
Chairman of the Salzburg District Court, considers the ‘Christian
case’ closed as far as the courts are concerned: ‘The
judicial authorities are no longer involved. It does not concern the
judge anymore. It is the parents’ responsibility to take the
next steps. The court has issued a decision and fulfilled its
obligations.’
In the evening friends of the father started
demonstrating in front of the Salzburg Regional Court. ‘Without
wanting to get involved in the case in question, we would like to
point out that children have a right to be heard and have their
wishes and opinions respected’, says Anita Gerhardter.”
- Finally,
the applicant company published a third article in its newspaper
under the title “The
Christian case: ‘Judicial authorities have to become more
sensitive’ (Fall Christian: Die Justiz muss sensibler
werden) on 13 February 2004.
It read as follows.
“A Salzburg judge has given the order to use
‘force’. ‘Appropriate force’ in order to take
a child away from his father and to take him to his mother in Sweden.
8-year old Christian from G. The boy had fought against two bailiffs
on 26 January. Alarming pictures show the end of the child-care
proceedings.
As reported, the results of the investigations of the
Linz Court of Appeal are now available. Court of Appeal President
Helmut Hubner says: ‘This case is also a wake-up call for the
judicial authorities. We have to become more sensitive.’
FORCE In his interview with KURIER Hubner defends
the judge who ordered the officers, who are bound by his
instructions, ‘to summon the minor with due tact, but without
considering his wishes, and if necessary with due force’. He
says: ‘That is the wording of the law’.
This is not quite true. The word ‘force’ is
not to be found in the non-contentious act. ‘Means of coercion’
are allowed by the law; however, they have to be directed against the
parent not respecting the judgment.
But Hubner also says: ‘This matter should never
have been dealt with in such a way’. He wants the officers to
be trained how to deal with children and how to talk to them. A
disciplinary procedure against the District Court judge is going to
be initiated: the bailiffs contacted him four times during that
mission, should he have ended it earlier?
Judges are discussing the matter. Judge Barbara Helige:
‘This case brings us to the limits of judicial activities, it
is a tightrope walk’.
Means of coercion have to be allowed for at least in
cases where severely mistreated children have to be saved from an
abusing parent ‘even when they still love their parents and
don’t want to be taken away’. However, Christian was
definitely not in such a situation.
Linz University professor Astrid Deixler-Hübner
(Institute for Civil Law) says that this law will be changed, taking
effect from 1 January 2005, and she further states: ‘The
well-being of the child is the top priority. The new ruling
stipulates that the judge has to discontinue the execution of his
orders when the well-being of the child is in danger’.
President Huber thinks, on the other hand, that this is
already the case today. ‘Even if this is not clearly written in
the text of the law, there is such a thing as common sense!’
He does not only hope that the judicial authorities will
act with common sense but the parents as well. They can fight their
wars of the roses anywhere, but not on the back of their children.
He considers that Christian’s development is
positive: ‘He was examined by a psychologist before leaving
with his mother for Sweden. The child has calmed down. He was curious
about Sweden and he was not unhappy’.”
- All
articles were accompanied by photos of Christian. The first article
was accompanied by a picture of Christian showing him with a
distressed expression, clinging to his brother, and a similar picture
accompanied the third article.
C. The proceedings under the Media Act
- With
regard to the articles published by the applicant company on 29 and
30 January and 13 February 2004, and the above events, Christian W.,
represented by his mother, brought proceedings under Section 7 and 8a
of the Media Act against the applicant company, seeking damages and
publication of the ensuing judgment. He argued that the reporting on
him had interfered with the intimate sphere of his life in a manner
which was likely to expose and compromise him in public. Moreover,
the articles constituted a breach of section 7a of the Media Act,
which prohibited reporting on the victim of crime in a manner which
made him or her recognisable in public, which was only allowed if the
importance of the offence or the persons implicated meant that there
was a preponderant interest of the public in the information. Both
applications were filed with the Vienna Regional Court for Criminal
Affairs (Landesgericht für Strafsachen Wien).
- On
19 October 2004 the Regional Court allowed the action and ordered the
applicant company to pay damages in the amount of 20,000 euros
(EUR), to publish the judgment in its periodical, and to bear the
costs of the proceedings. The court found that the publishing of the
above articles containing details of the custody dispute over
eight-year old Christian W. had caused the intimate sphere of
his personal life to be exposed in a manner likely to compromise him
in public, in breach of section 7 of the Media Act. Moreover,
the article published on 29 January 2004 had made the full name of
Christian W. public and had been accompanied by a photograph of him.
Thereby the identity of a person who had been the victim of a
criminal offence had been disclosed to a large and not directly
informed circle of people without any justification. This was in
breach of Section 7a of the Media Act. The Regional Court
observed further that all the articles had been accompanied by
pictures of Christian W. in which he, with a highly perturbed facial
expression, was seen clinging to his brother.
- The
Regional Court accepted that there existed a direct link between the
events reported on and the public interest because of the harsh
criticism voiced of the conduct of the court officials who had
attempted to enforce the custody order. However, the person having
custody of Christian had not agreed to the publication and the public
interest in the events could have been satisfied without giving the
child’s full name and publishing pictures of him.
- On
25 February 2005 the applicant company appealed. Relying on
Article 10 of the Convention it argued, inter alia, that
the Regional Court had failed to take into account that on the issue
of enforcement of custody orders there was an ongoing discussion in
which presidents of various courts and the President of the
Association of Judges were participating. Moreover, the Federal
Minister of Justice had set up a working group of experts to draw up
a report on the events of 26 January 2004. The press had
been addressed not only by Christian’s father but also by
representatives of the Federal Ministry of Justice, the courts and
the Linz Court of Appeal, which had even held a press conference. In
such circumstances it had been necessary to inform the public of the
identity of the persons involved, and against the background of the
public discussion the custody dispute and the preliminary events
leading to the incident on 26 January 2004 had also been of
legitimate interest to the public.
- On
5 April 2005 the plaintiff commented on the appeal. He argued that
the applicant company could not rely in its defence on the fact that
organs of the judiciary had also commented in public on the events,
because they had neither made public the full name of the victim and
details from his intimate life nor published photos of him. Had the
applicant company acted in the same way, its reporting would have
been fully acceptable.
- On
22 June 2005 the Vienna Court of Appeal partly allowed the appeal. It
found that there was no breach of Section 7a of the Media Act,
because under that provision a compensation claim only existed if a
media outlet had described acts by which someone had become the
victim of a crime and if the description violated the victim’s
protected interests. In the present case, however, it was not the
description of a criminal act that had breached Christian’s
protected interests. It reduced the compensation to EUR 3,000
per article, altogether EUR 9,000.
- The
Court of Appeal dismissed the applicant company’s criticism
that the Regional Court had not taken sufficiently into account that
representatives of the judiciary themselves had made public
statements. The Regional Court had accepted that there was a direct
link between the events reported on and the public interest. However,
giving details from the plaintiff’s intimate family life,
giving his full name, and adding pictures of the plaintiff had
transgressed into his intimate sphere as these details had been given
merely in order to satisfy the lust for sensation and the curiosity
of its readers.
- Even
if there was a link to public life, the media could only report on a
person’s intimate sphere to the extent necessary for adequately
satisfying the need for information relating to those elements which
were of relevance to the public interest. Reporting on events within
the intimate sphere of a person must therefore be adequate to the
occasion and proportional. In the present case it had not been
necessary for the purpose of informing the public on alleged
shortcomings within the judiciary, and it had not been necessary to
expose in such an intense and striking way the severe strain being
suffered by the juvenile plaintiff through the insertion of
photographs showing his distress and despair, through mentioning his
full name, and through setting out the details of his seizure.
II. RELEVANT DOMESTIC LAW
- Section 7 of the Media Act, which has the title
“Interference with a person’s most intimate personal
sphere” (Verletzung des höchstpersönlichen
Lebensbereiches), reads as follows:
“(1) If a person’s strictly
private life is discussed or presented in the media in a manner which
is apt to compromise this person in public, the person concerned may
claim compensation from the owner of the media for the injury
suffered. The amount of compensation shall not exceed EUR 20,000 ...
(2) No compensation claim under paragraph 1
exists if
1. the publication at issue is based on a
truthful report on a public session of the National Council or the
Federal Council, the Federal Assembly, a regional diet or a committee
of one of these general representative bodies;
2. the publication is true and has a direct
connection to public life;
3. in the circumstances it could have been
assumed that the person concerned had agreed to the publication;
4. it is a direct broadcast on radio or
television (live programme) and the employees or contractors of the
radio or television station have not neglected the principles of
journalistic diligence;
5. the information has been published on a
retrievable website and the owner of the media or its employees or
contractors have not neglected the principles of journalistic
diligence.”
- Section
7a of the Media Act which has the title “Protection against
divulging a person’s identity in special cases” (Schutz
vor Bekanntgabe der Identität in besonderen Fällen),
reads as follows:
“(1) Where publication is made, through
any medium, of a name, image or other particulars which are likely to
lead to the disclosure to a larger not directly informed circle of
people of the identity of a person who
1. has been the victim of an offence
punishable by the courts, or
2. is suspected of having committed, or has
been convicted of, a punishable offence,
and where legitimate interests of that person are
thereby injured and there is no predominant public interest in the
publication of such details on account of the person’s position
in society, of some other connection with public life, or of other
reasons, the victim shall have a claim against the owner of the
medium (publisher) for damages for the injury suffered. The award of
damages shall not exceed 20,000 euros; additionally, section 6(1),
second sentence, shall apply.
(2) Legitimate interests of the victim shall
in any event be injured if the publication
1. in the case of subsection (1)1, is such as
to give rise to an interference with the victim’s strictly
private life or to his or her exposure,
2. in the case of subsection (1)2, relates to
a juvenile or merely to a lesser indictable offence (Vergehen)
or may disproportionately prejudice the advancement of the person
concerned.
(3) No compensation claim under paragraph 1
exists if
1. the publication at issue is based on a
truthful report on a public session of the National Council or the
Federal Council, the Federal Assembly, a regional diet or a committee
of one of these general representative bodies;
2. the publication of the information on the
person has been decided officially, in particular for the purposes of
criminal justice or public security;
3. the person concerned has agreed to the
publication or if the publication is based on information given by
that person to the media;
4. it is a direct broadcast on radio or
television (live programme) and the employees or contractors of the
radio or television station have not neglected the principles of
journalistic diligence;
5. the information has been published on a
retrievable website and the owner of the media or its employees or
contractors have not neglected the principles of journalistic
diligence.”
- Section
6(1) second sentence of the Media Act, to which reference has been
made above, reads as follows:
“The amount of compensation shall be fixed
according to the extent of the publication, its impact and, in
particular, the type of media and how broadly it is disseminated; the
compensation must not endanger the economic existence of the media
owner.”
- Section
8a of the Media Act which has the title “Separate compensation
proceedings” (Selbständiges
Entschädigungsverfahren), insofar as
relevant, reads as follows:
“In a judgment by which compensation under Section
6, 7, 7b or 7c has been awarded on the basis of a separate
compensation request, the court must also order the publication of
the judgment if the person concerned so requests so ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained under Article 10 of the Convention that
the judgments of the Austrian courts violated its right to freedom of
expression. Article 10 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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that it is common ground between the parties that the
Vienna Regional Court’s judgment of 19 October 2004, upheld by
the Court of Appeal, which awarded damages to Christian, constituted
an interference with the applicant company’s right to freedom
of expression, as guaranteed by Article 10 § 1
of the Convention.
- An
interference contravenes Article 10 of the Convention unless it is
“prescribed by law”, pursues one or more of the
legitimate aims referred to in paragraph 2, and is “necessary
in a democratic society” for achieving such an aim or aims.
- The
Court considers, and this was acknowledged by the parties, that the
interference was prescribed by law, namely by sections 7 and 7a
of the Media Act. The Court further finds, and this was
likewise not disputed between the parties, that the interference
served a legitimate aim, namely “the protection of the
reputation or rights of others” within the meaning of
Article 10 § 2
of the Convention.
- The
parties’ argument concentrated on the question whether the
interference had been “necessary in a democratic society”
within the meaning of Article 10 § 2 of the Convention.
1. The parties’ submissions
- The
applicant company maintained that the
interference with its right to impart information had not been
necessary in a democratic society. There was no doubt that the event
on which the applicant company had reported had involved questions
which were a subject of public importance, namely the conduct of the
courts and authorities when enforcing the Family Court’s
decision to hand Christian over to his mother, and contributed to the
public discussion which had been triggered by the questionable
conduct of the enforcement officers.
- In
reporting on the matter the press could not, as suggested by the
Austrian courts, have done so in a merely neutral and sober way. It
was also a corporate necessity to attract the attention of the public
by incorporating entertaining components, as otherwise it would be
practically impossible to reach the public. Otherwise the press would
loose its audience and would no longer be able to fulfil its
protection and warning role. In fulfilling this role the press was
entitled to resort to exaggeration and provocation in their reporting
and this right was not restricted to textual reporting but also
extended to images illustrating the articles. It was true that the
applicant company had published one picture of Christian which could
be considered as showing his suffering and despair while clinging to
his brother, but that picture had been published only for the purpose
of rousing the public from apathy. The essential question was
therefore whether the importance of the events on which the applicant
company was reporting justified the publication of pictures which
also showed the pain and suffering of the persons concerned by the
events. For the above reasons the answer must be in the affirmative.
- The
applicant company also argued that the amount of compensation granted
to Christian had been excessive, because the impugned articles had
not been published on the front page of the newspaper but merely
towards the back, and the main reason for the granting of
compensation was the publication of one single picture showing the
suffering and despair of Christian, while the other pictures were
merely neutral images of him.
- The
Government, while acknowledging the essential role played by the
press as a “public watchdog”, asserted that in the
present case the interference with the applicant company’s
freedom of expression had been necessary within the meaning of
Article 10 § 2 of the Convention. They argued in particular that
the domestic courts had had to weigh the applicant company’s
interest in imparting information on an issue of public interest
against the right to protection of the most intimate sphere of life
of the person on whom it reported, which was equally protected by the
Convention, namely the right to respect for his or her identity,
protected by Article 8 as part of a person’s private life.
The necessity to carry out such a weighing of interests was laid down
in section 7 of the Media Act.
- The
Austrian courts had found that that the articles published by the
applicant company constituted an intrusion into the strictly private
life of Christian, a minor. In its judgment of 19 October 2004 the
Regional Court had explained in detail that even though it was
clearly permissible to publish an article on the events surrounding
the handing over of Christian to his mother, and the conduct of the
courts and authorities in this respect, this did not mean that in
doing so the applicant company had the right to reveal the identity
of Christian and publish pictures showing him in a state of despair.
The disclosure of the identity of Christian was irrelevant for
understanding the details of the events of which he had been the
victim and this specific detail was also unnecessary in raising
public awareness concerning the conduct of the authorities. In such
cases the State had a positive obligation to ensure effective
protection against breaches of the personal integrity of children, as
a particularly vulnerable group.
- Lastly
the Government argued that the amount of compensation awarded to
Christian, namely EUR 9,000 was not disproportionate, given that this
figure was well below the maximum amount of compensation possible,
and taking into account the wide dissemination of the information by
the applicant company and the influence it had had on public opinion.
2. The Court’s assessment
(a) General principles
- According
to the Court’s well-established case-law, the test of necessity
in a democratic society requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”, whether it was proportionate to the legitimate aim
pursued, and whether the reasons given by the national authorities to
justify it are relevant and sufficient (see The Sunday Times v.
the United Kingdom (no. 1), 26 April 1979, § 62, Series
A no. 30). In assessing whether such a need exists and what measures
should be adopted to deal with it, the national authorities are left
a certain margin of appreciation. This power of appreciation is not,
however, unlimited but goes hand in hand with a European supervision
by the Court, whose task it is to give a final ruling on whether a
restriction is reconcilable with freedom of expression as protected
by Article 10 (see Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 58, ECHR 1999 III).
- An
important factor for the Court’s determination is the essential
function of the press in a democratic society. Although the press
must not overstep certain bounds, in particular in respect of the
reputation and rights of others or the proper administration of
justice, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see Bladet
Tromsø and Stensaas, cited above, § 59, and as a
recent authority, Flinkkilä and Others v. Finland, no.
25576/04, § 73, 6 April 2010). By reason of the “duties
and responsibilities” inherent in the exercise of freedom of
expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith and on an accurate factual
basis and providing reliable and precise information in accordance
with the ethics of journalism (see Fressoz and Roire v.
France [GC], no. 29183/95, § 54, ECHR 1999 I, and, as a
recent authority, Eerikäinen and Others v. Finland, no.
3514/02, § 60, 10 February 2009).
- Whilst
it is true that the methods of objective and balanced reporting may
vary considerably and that it is therefore not for this Court, nor
for the national courts, to substitute its own views for those of the
press as to what technique of reporting should be adopted (Jersild
v. Denmark, 23 September 1994, § 31, Series A no. 298),
editorial discretion is not unbounded. Not only does the press have
the task of imparting such information and ideas: the public also has
a right to receive them. Were it otherwise, the press would be unable
to play its vital role of “public watchdog” (Observer and
Guardian v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216; Thorgeir Thorgeirson v. Iceland,
25 June 1992, § 63, Series A no. 239; Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 62,
ECHR 1999-III; and, more recently, Gutiérrez Suárez
v. Spain, no. 16023/07, § 25, 1 June 2010).
- The
Court has always stressed the contribution made by photographs or
articles in the press to a debate of general interest (see Standard
Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June
2009, with further references). However, the publication of
photographs and articles the sole purpose of which is to satisfy the
curiosity of a particular readership regarding the details of a
public figure’s private life cannot be deemed to contribute to
any debate of general interest to society despite the person being
known to the public. In such conditions freedom of expression calls
for a narrower interpretation (see MGN Limited v. the United
Kingdom, no. 39401/04, § 143, 18
January 2011, and Von Hannover v. Germany,
no. 59320/00, § 65-66, ECHR 2004-VI). Moreover, although
freedom of expression also extends to the publication of photographs,
this is an area in which the protection of the rights and reputation
of others takes on particular importance. Photographs appearing in
the tabloid press are often taken in a climate of continual
harassment which induces in the person concerned a very strong sense
of intrusion into their private life or even of persecution (see Von
Hannover v. Germany, cited above, at § 59, and
Hachette Filipacchi Associés v. France, no.
71111/01, § 42, 14 June 2007).
- The subject matter at issue in this case relates, on
the one hand, to the right of the press under Article 10 of the
Convention to inform the public on matters of public concern
regarding ongoing court proceedings and on the manner in which
decisions by the courts are enforced and, on the other, to the
State’s positive obligations under Article 8 of the Convention
to protect the privacy of persons, in particular minors, to whom such
proceedings relate. When verifying whether the authorities struck a
fair balance between two protected values guaranteed by the
Convention which may come into conflict with each other in this type
of case – freedom of expression protected by Article 10 and the
right to respect for private life enshrined in Article 8 – the
Court must balance the public interest in the publication of the
information and the need to protect private life (see
Hachette Filipacchi Associés v. France, no.
71111/01, § 43, ECHR 2007-VII). The balancing of individual
interests which may well be contradictory is a difficult matter and
Contracting States must have a broad margin of appreciation in this
respect since the national authorities are in principle better placed
than this Court to assess whether or not there is a “pressing
social need” capable of justifying an interference with one of
the rights guaranteed by the Convention (see MGN Limited,
cited above, § 142, and Egeland and Hanseid v. Norway,
cited above, § 55).
(b) Application of these principles to the
present case
- In
the present case the applicant company published in its newspaper
Kurier, between 29 January 2004 and 13 February 2004, three articles
about a dispute between parents over custody of their child,
Christian. In the custody proceedings the competent courts did not
accept to transfer custody of Christian to the father, who had
refused to comply with that decision. Various attempts at enforcement
were unsuccessful because Christian and his father had gone into
hiding, and in January 2004 the competent court ordered that
Christian be brought before the court by force. On 26 January
2004 court officers went to the house of Christian’s father and
tried to seize the child, who cried and resisted. These scenes were
again the subject of wide media coverage, notably by the applicant
company’s newspaper, because they were observed and
photographed by several journalists, who had been informed and had
hurried to the spot. The applicant company’s newspaper reported
on this case and the articles published disclosed Christian’s
identity and details of his family life and of the custody dispute.
They were accompanied by photographs of Christian that had not been
rendered anonymous and, in particular, one which showed him in a
state of pain and despair on the occasion of the intervention of the
court officers on 26 January 2004.
- Thereupon,
Christian brought proceedings under the Media Act against the
applicant company, claiming compensation in respect of reporting
constituting an intrusion into his strictly private life (section 7
of the Media Act) and reporting on the victim of a crime in a manner
rendering that person recognisable by the public (Section 7a of the
Media Act). On 19 October 2004 the Vienna Regional Criminal
Court found against the applicant company, ordering it to pay
compensation and to publish the judgment in its newspaper. On appeal
the Court of Appeal found on 21 September 2005 that the
reporting at issue had been in breach of the obligation not to
interfere with a person’s strictly private life, but rejected
the other ground for compensation, namely, reporting on the victim of
a crime in an identifiable manner, and awarded compensation at
EUR 3,000 per Article, altogether EUR 9,000. The Regional Court
and the Court of Appeal considered that the reporting at issue had
breached Christian’s right to respect for his strictly private
life, and found that there had existed no predominant public interest
in the revealing of his identity and giving details of his family
life, his health and his emotional state, or the publishing of
photographs taken at the time of the unsuccessful attempt to enforce
the court’s order to hand him over to his mother showing him in
a state of pain and despair.
- In
the Court’s view the reasons given by the Regional Court and
upheld by the Court of Appeal were undoubtedly “relevant”
reasons for the purposes of the necessity test to be applied under
Article 10 § 2. It will next examine whether they were also
“sufficient”.
- The
Court agrees with the domestic courts that the case concerned a
balancing of the applicant company’s right to freedom of
expression under Article 10 against Christian’s right to
protection of his strictly private life. In such cases one factor the
Court has taken into account is the position of the person concerned
by the publication: whether or not he or she was a “public
figure” or had otherwise “entered the public scene”
(see, for instance, Flinkkilä and Others, cited above, §
83, and Eerikäinen and Others, cited above, § 66).
Another important factor is whether the articles or photographs in
the press contributed to a debate of general interest (see
Flinkkilä and Others, cited above, § 76, and
Eerikäinen, cited above, § 66).
- In
the present case, Christian is not a public figure, nor does the
Court consider that he has entered the public scene by becoming the
victim of a custody dispute between his parents which attracted
considerable public attention.
- The
Court further considers that the articles at issue dealt with a
matter of public concern, namely the appropriate enforcement of
custody decisions and whether and to what extent force may or should
be used in this context. Such a matter could, and in the present case
did, give rise to a public debate. However, given that neither
Christian himself nor his parents were public figures or had
previously entered the public sphere, it cannot be considered that
the disclosure of his identity was essential for understanding the
particulars of the case (see “Wirtschafts-Trend”
Zeitschriften-Verlagsgesellschaft mbH (no. 2) v. Austria
(dec.), no. 62746/00, 14 November 2002). In this connection, the
Court notes that it was acceptable for the applicant company to
report on all relevant details concerning the case of Christian, in
particular as regards the problematic attempt to enforce the decision
taken in the custody proceedings by the court officers on 26 January
2004, but not to reveal the identity of Christian while publishing
the most intimate details about him, or publish a picture of him from
which he could be recognised.
- The
applicant company also argued that it had been necessary to publish
the picture of Christian showing his suffering and despair while
clinging to his brother for the purpose of rousing the public from
apathy and attracting their attention, as otherwise the press would
not have been able to fulfil its protection and warning role.
However, the Court has found in the past that the publication of
photographs and articles the sole purpose of which is to satisfy the
curiosity of a particular readership regarding the details of a
public figure’s private life cannot be deemed to contribute to
any debate of general interest to society despite the person being
known to the public. In such conditions freedom of expression calls
for a narrower interpretation (see MGN Limited, cited above, §
143, with further references). The Court considers that such
considerations also apply to persons, like Christian, who are not
public figures.
- On
the other hand, there is no doubt that the preservation of the most
intimate sphere of life of a juvenile who had become the victim of a
custody dispute and had not himself stepped into the public sphere
deserved particular protection on account of his or her vulnerable
position.
- Lastly
the Court considers that the interference with the applicant
company’s right to impart information was proportionate. The
applicant company was not subject to a fine imposed in criminal
proceedings but was ordered to pay compensation for the injury caused
to the person with whose right to respect for his strictly private
life it had interfered. The amount of compensation, EUR 9,000,
relates to three published articles. The amounts appear reasonable
taking into account the length of the articles, their contents,
which, on account of the details given and the photographs published,
constituted a serious interference given the vulnerable situation of
Christian as the victim of the custody dispute and the particularly
wide circulation of the applicant company’s media.
- In
sum, the Court finds that in awarding compensation for the
interference with Christian’s strictly private life by the
applicant company, the respondent State acted within its margin of
appreciation in assessing the need to protect his privacy. It is
satisfied that the restriction on the applicant company’s right
to freedom of expression resulting from the judgments of the Regional
Court and the Court of Appeal was supported by reasons that were
relevant and sufficient, and was proportionate to the legitimate aims
pursed.
- There
has accordingly been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 19 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
