In the case of Verlagsgruppe News GmbH and Bobi v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle
Berro-Lefèvre, President,
Elisabeth Steiner,
Anatoly
Kovler,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 13 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
59631/09) 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 Verlagsgruppe News GmbH and Mr Emil Bobi (“the
applicants”) on 30 October 2009.
The applicants were represented by Mr H. Simon, a
lawyer 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.
The applicants alleged that the injunction
imposed on them prohibiting them from publishing a picture of the principal of
a seminary in connection with articles on homosexual relationships between
seminarians and their superiors had violated their rights under Article 10 of
the Convention.
On 24 June 2010 the application was communicated 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 first applicant, Verlagsgruppe News GmbH, is
a limited liability company established under Austrian law with its registered
office in Vienna. It publishes the weekly news magazine Profil. The
second applicant, Mr Emil Bobi, is a journalist and editor-in-chief
responsible for certain sections of the weekly news magazine Profil. He lives
in Vienna.
A. The articles at issue
In the issue of Profil of 5 July 2004 an
article was published on searches carried out by police in the Roman Catholic
seminary in St Pölten. According to the article, police had searched the
seminary on suspicion of someone having downloaded child pornography from the
Internet. The article further stated that, according to rumours, police had
also found photographs showing seminarians engaging in homosexual activities,
and that there were rumours of unwanted homosexual advances towards seminarians
involving abuse of authority. The article was accompanied by a photograph of
the principal (Regens) of the seminary, Mr Küchl, showing him standing
in a garden, and by an interview with him in which he said that he did not
believe that there had been any unwanted sexual advances by superiors and that
the rumours were part of an intrigue or a revenge plot by a former seminarian.
He denied involvement in any such incidents.
On 7 July 2004 the second applicant called Mr
Küchl and said he had received photographs which showed the latter engaging in
homosexual activities. Mr Küchl stated that this was impossible and that any
such photographs could be interpreted in different ways.
In its issue of 12 July 2004 Profil published
an article entitled “Go on!” (Trau dich doch). The sub-heading read
“Porn scandal. Photographic evidence of sexual antics between priests and their
students has thrown the diocese of St Pölten into disarray. First the principal
and now the deputy principal have resigned. High-ranking dignitaries expect
Kurt Krenn [the bishop of the diocese] to be removed from office.”
The article stated that Mr Küchl had had sexual relations
with seminarians and that two of them had regularly spent weekends or longer
periods with him at the Eisgarn monastery. It also stated that there was
nothing to corroborate the rumours of unwanted homosexual advances which had
been reported earlier. The article further reported that some seminarians had
downloaded pornography and child pornography onto their computers. According to
the article, the existence of homosexual relations was well-known within the
seminary and was even known to the bishop, who had tried to “hush up” the case
at first. The article contained a photograph showing Mr Küchl with his left arm
around one of the seminarians, holding the seminarian’s wrist with his left hand
and with his right hand on the man’s crotch. This picture had been taken by one
of the seminarians at a birthday party and Mr Küchl was shown looking into the
camera, apparently aware that he was being photographed. In the article Mr Küchl
was identified by name, while the seminarians’ identities were not disclosed.
Likewise, in the published photograph, Mr. Küchl’s face was visible while that
of the seminarian was blurred. The article was also accompanied by a statement from
Mr Küchl saying that the photograph could be interpreted in different ways.
On 19 July 2004 the magazine again published the
photograph and an article on recent events in the diocese in the wake of the
child pornography scandal. The article also contained a letter from Mr Küchl to
members of the parish in which he said that the photograph had been taken from
an unfortunate angle (unglückliche Einstellung) and that he had never
approached any seminarian in a sexual context.
B. The proceedings under the Media Act
On 6 August 2004 Mr Küchl
initiated proceedings under the Media Act (Mediengesetz) against the
applicant company in relation to the article published on 12 July 2004. Those
proceedings are the subject of application no. 51151/06, Küchl v.
Austria. They are summarised here, in so far as is necessary for the
examination of the present case.
Relying on sections 6 and 7 of the said Act, Mr
Küchl (“the claimant”) requested compensation for defamation (üble Nachrede)
and for the violation of his strictly personal sphere (höchstpersönlicher
Lebensbereich) caused by the publication of the photograph and the
impugned article, especially the following passages:
“‘Porn scandal. Photographic evidence of sexual antics between
priests and their students has thrown the diocese of St Pölten into disarray’. ‘A
painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s
private secretary and legal adviser ...’; ‘Photos showing, among others,
seminarians from St Pölten in kinky situations, in some cases with their
superiors ... and because they were doing it with the boss and his deputy too,
it was all quite normal and they felt perfectly safe ...’; and ‘In June of the
previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament
of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’”
On 15 September 2005, after holding several
hearings at which evidence was heard from a number of witnesses, the Vienna
Regional Criminal Court (Landesgericht, hereinafter “the Regional
Court”) dismissed Mr Küchl’s request for compensation.
The Regional Court observed that a large
percentage of readers of the weekly Profil that had published the impugned
article and the photograph would read the news magazine in only a cursory
manner and would also consult other media before forming their opinion. Those readers
would learn that there had been homosexual contacts between the applicant and
seminarians and also among seminarians, and that there existed photographs to
support this. The published photograph showed that the applicant and the
seminarian were more than just friends and had had homosexual contacts. It
represented the applicant with his left arm around the seminarian and his hand
on the man’s crotch. The article made clear that such contacts had been entered
into without coercion.
Giving a detailed evaluation of the various
witness statements, the Regional Court found it established that the applicant
had had consensual homosexual relationships with several seminarians, one of
whom had repeatedly spent weekends at Eisgarn monastery; this had led to an
explicit instruction from Bishop Krenn prohibiting such visits by seminarians.
Furthermore, the court found that the applicant had spent a holiday with a
seminarian during which they shared an apartment in a hotel. It also found that
the applicant had performed a ceremony in a restaurant which an outside
observer could have understood as bestowing a kind of “sacrament of marriage” on
two seminarians. Moreover, the statements of the witnesses had confirmed that
the published photograph had been taken in the applicant’s apartment at Eisgarn
monastery during a birthday party for one of the seminarians. The Regional Court thus held that the facts contained in the article were in essence true.
Owing to the considerable importance of the
Roman Catholic Church as a role model, the public had a great interest in being
informed about what was going on within the Church. The public also had an
interest in knowing what happened in the seminary, especially since it had
become known that pictures containing child pornography had been downloaded
from the Internet. The circumstances leading to such incidents were a subject
of public interest and had a direct connection with public life. Mr Küchl,
as the head of the seminary, was a public figure in that capacity. Even
though the impugned picture had been taken in his private residence there was a
connection to his public life. While accusing a dignitary of the Roman Catholic
Church of having homosexual contacts constituted the actus reus of
defamation within the meaning of section 6 of the Media Act and exposed his
strictly personal sphere within the meaning of section 7 of the said Act, the
newspaper publisher had proved that the reported facts were essentially true. Accordingly,
Mr Küchl’s claim for compensation had to be dismissed.
The Vienna Court of Appeal (Oberlandesgericht)
dismissed the appeal in a judgment of 24 May 2006. It upheld the judgment of the
Regional Court, ruling that the said court had not erred in fact or in law
and had rightly held that the newspaper editor had managed to prove that the
content of the article was true. Furthermore, the Court of Appeal held that, in
reporting on photographic evidence of seminarians in “kinky situations”, the
applicant company had provided proof that the statements were true. The average
reader of the magazine would understand the term “kinky” to mean a deviation
from what was considered normal, which would include a photograph of priests
and seminarians in a sexual pose wearing clerical clothing, especially as the persons
concerned belonged to a group of people who publicly spoke out against
homosexuality and denounced homosexual contacts as a sinful. The Court of
Appeal went on to state as follows:
“The court cannot accept the additional arguments to the effect
that the substantive law was incorrectly applied because the conduct reported
on fell within the sphere of strictly private life and had no connection with
public life. The Catholic Church, to which the majority of the Austrian
population belongs and which, according to Article II of the Concordat
(BGBl. II No. 2/1934), has public-law status, has a level of importance in
Austria going beyond that of a small association, as is clear from the overall content
of the Concordat and the circumstances in which it was ratified. Accordingly,
conduct on the part of Church dignitaries which is in flagrant contradiction
with Catholic teachings may very well be of public interest, particularly where
- as in the present case - homosexual contacts take place and are maintained,
albeit on a consensual basis, between staff and students in an educational
establishment and between students themselves. The Catholic Church strives for
acceptance and credibility among the public at large, and the activities of a
principal and a deputy principal, particularly those in charge of a training
college for future priests, are directly related to public life. The Catholic
Church is engaged in public relations work in many spheres and regularly makes
its views on (sexual) morality known to the population as a whole, with the
result that the general public is also entitled to be informed if individual
officials are failing to practise what they preach, condemning homosexuality as
a sin in public while practising it in private, even between staff and
students. It should also be taken into consideration that the teachings of the
Catholic Church on the subject of homosexuality are contrary to the fundamental
right to sexual self-determination under Article 8 of the European Convention
on Human Rights and to the prohibition on discrimination; hence, on this basis
also, there is a public interest in the publication of specific allegations
that Church dignitaries are failing to observe their Church’s teachings on
sexual morals. This is even more so where the reports concern homosexual
contacts between a teacher and his students. Such relationships of dependency
call for particular vigilance in order to avoid potential breaches of a
fundamental code of conduct designed to protect the physical and psychological
integrity of the students. The media have a vital role in publicly exposing
misconduct in a democratic society governed by the rule of law.
The exposure and public condemnation of such misconduct is thus
in any event in the public interest; the same is true of the reports
identifying those concerned, without which it would not be possible to express
credible criticism of specific inadmissible situations and thus fulfil the role
of “public watchdog”. The weighing of interests in the present case should
undoubtedly lead to the conclusion that the public right to information
prevails. The professional activity of an ordained priest who is active in
public life both as a clergyman and as head of a seminary does not take place
merely within the Church; the Catholic Church has an important and, in some
respects even a State role, and the credibility of its officials, who demand
moral standards from the population and compliance with the Church’s rules of
community life, occupies an important position in that regard. In particular,
the fact that the events involved students who as future officials of the
Catholic Church are supposed to be taught these moral precepts by example,
lends those events a public-interest dimension extending beyond the Church
itself and affects all sections of the population...”
The Court of Appeal concluded
that since the article had reported essentially true facts and there was a public
interest in their being reported, the Regional Court had rightly rejected the
applicant’s request for compensation.
C. The proceedings under the Copyright Act
On 9 July 2004, after publication of the first
article, Mr Küchl brought proceedings against the applicant company and
the second applicant before the Vienna Commercial Court (Handelsgericht).
Relying on section 78 of the Copyright Act (Urheberrechtsgesetz), he
asked the Commercial Court to order the applicant company and the second
applicant to
(i) refrain from making and publishing express statements or
statements to the effect that photographs existed which showed him having
homosexual contacts or appeared to show that he was homosexual and
(ii) refrain from publishing photographs of the claimant which
violated his legitimate interests, especially in connection with allegations of
unwanted homosexual advances involving abuse of authority, which were damaging
to his honour and reputation.
The claimant also requested the Commercial Court to issue an interim injunction prohibiting the applicant company and the
second applicant from publishing the above-mentioned statements and pictures.
After publication of the second article in the
issue of Profil of 12 July 2004, showing for the first time the
photograph of the claimant with his hand on the seminarian’s crotch, the
claimant notified the Commercial Court of the further statements contained in
that article and of the fact that the photograph had been published. He
repeated the requests made on 9 July 2004.
1. The interim injunction proceedings
In so far as relevant in the context of the
present case, the claimant’s request for an interim injunction was rejected by
the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the
Vienna Court of Appeal, which gave its decision on 18 June 2005.
In a decision of 15 December 2005 the Supreme
Court varied the lower courts’ decisions, granting point (ii) of the claimant’s
request for an interim injunction. The applicant company and the second
applicant were thus prohibited from publishing photographs of the claimant, in
particular in connection with allegations of unwanted homosexual advances
involving abuse of authority which were damaging to the claimant’s honour and
reputation. However, the Supreme Court dismissed point (i) of the claimant’s
request, namely that the applicant company and the second applicant be ordered to
refrain from making and publishing express statements or statements to the
effect that photographs existed which showed the claimant having homosexual
contacts or appeared to show that he was homosexual.
The Supreme Court (Oberster Gerichtshof) held
that even the publication of true statements was capable of interfering with a
person’s right to privacy and thus might become unlawful. In such cases the
interests of the persons concerned in the protection of their reputation or the
intimate sphere of their private lives had to be weighed against the interests of
the recipient of the information. Referring to the Court’s case-law under
Article 10 of the Convention, the Supreme Court noted the importance of
freedom of the press, in particular where the latter reported on issues of
general interest. In the present case, information about the homosexuality of
officials of the Roman Catholic Church was an important issue and as such was often
the subject of public attention and discussion. It was the media’s task to
report and comment on actual cases. Thus, the claimant’s interest was
outweighed by the applicants’ right to publish the statements, the truth of
which was not in dispute.
As to the publication of the
photograph, the Supreme Court held as follows:
“1. The publication of images that would cause
injury to legitimate interests is prohibited (section 78(1) of the Copyright
Act). The injury must arise out of the actual publication of the image
(RIS-Justiz RS0077782). However, not only the image itself must be assessed,
but also the manner of its dissemination and the context in which it is set
(RS0078077). The assessment as to whether legitimate interests have been
infringed must aim to establish whether the interests of the person depicted
can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377
with further references).
2. On the basis of these principles, the interests
of the claimant in the present case should be considered worthy of protection,
contrary to the Court of Appeal’s view.
The accompanying text portrays the claimant in a negative
light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to
use the terminology of the German case-law) nor a ‘public figure’ (the term
used in Austrian legal practice) whose appearance was already known to the
general public before the picture was published (4 Ob 15/93). It is clear that
the publication of the picture intensifies the demeaning effect of the
accompanying text, which is damaging to the honour of the person concerned (‘pillorying
effect’). In such cases, therefore, publication of the picture can be justified
only if, after the required weighing of interests, the interest of the
publisher in publishing is found to prevail (RIS-Justiz RS0077767). However,
that is not the case here. The protection of the intimate sphere of the
claimant’s private life carries greater weight in this case than the public
interest in being informed of the image, in contrast to the case already
examined concerning the text of the article. Of course, there is some force to
the Court of Appeal’s argument that publication was designed to some extent to ‘prove
the claimant guilty’ after he had denied the accusations as ‘slander’, and thus
to allow the public to make up its own mind on the basis of the photograph. In
the Supreme Court’s view, however, this argument is not sufficiently decisive
to justify intruding upon the intimate sphere of the claimant’s private life
and providing documentary ‘evidence’ of the allegations denied by the claimant.
It must first be taken into consideration that the photograph was taken at a
private party and thus indisputably fell within the private sphere protected by
Article 8 of the ECHR. If sexual freedom between consenting adults is
recognised as an absolute personal right and the innermost private sphere is
protected under the Constitution, then this must also apply in principle to
members of religious organisations and Church officials, even if the practice
of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the
right to anonymity requires particularly weighty reasons which do not apply
here to the required degree. There is no overriding interest for the public at
large to be informed of the claimant’s appearance and to identify him via publication
of his photograph. Even when publication takes place in connection with a
criminal offence, the principle of proportionality of the interference applies.
Likewise, even a genuine need to inform must not go beyond what is strictly
necessary, so that it cannot be accepted in all cases in which the public has
reason to take an interest in a particular individual that there is a genuine
need to be shown a picture of that person (RIS-Justiz RS0077883). The interest
in dissemination of a picture can only take precedence if the picture has a
particular news value - for instance, to warn the public about an escaped
criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the
proportionality principle prohibits publication merely in order to satisfy an
appetite for scandal. The interest in being informed can be sufficiently met
without publication of an image, simply by reporting the facts and referring to
the existence of a photograph (several photographs) as evidence.”
2. The main proceedings
On 4 July 2006 Mr Küchl narrowed his previous
claim to the publication of pictures, amended the wording of the injunction
sought, and added a claim for damages. He thus requested the court to order the
applicants to refrain from publishing photographs of him which violated his
legitimate interests, especially in connection with allegations of unwanted
homosexual advances towards seminarians involving abuse of authority, and/or of
engaging in sexual antics or “kinky” situations with seminarians or similar
allegations.
In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims.
Referring to the decisions in the proceedings
under the Media Act and to the Supreme Court’s decision of 15 December 2005 in
the interim injunction proceedings, the Commercial Court observed that the
statements made in the various articles in Profil were true, namely that
the claimant had had homosexual relationships with seminarians, including P.,
with whom he was shown in the impugned picture. However, it had to be assessed
whether the publication of his picture in connection with those true facts had
violated his legitimate interests. The claimant’s interest in the protection of
his private life as guaranteed by Article 8 of the Convention had to be weighed
against the freedom of the press to impart information as protected by
Article 10.
The Commercial Court held that Article 10 of the
Convention protected not only the freedom to impart information, but also the
form in which such information was imparted. Thus, the publication of the
photograph had been lawful, especially as the accompanying text was not capable
of damaging the claimant’s honour or of having a pillorying effect. Quoting the
courts’ decisions in the proceedings under the Media Act, the Commercial Court
also held that, owing to the status of the Roman Catholic Church and its
dignitaries in Austria, and its teachings that homosexuality was a sin and an
aberration, the public had a right to be informed about the conduct of the principal
of a seminary who was responsible for the education of future priests. In the
present case, proportionality between the interests at stake had been maintained,
as the photograph had not been published simply in order to satisfy the public’s
interest in scandals, but had served to inform the public.
In a judgment of 13 December 2007 the Vienna Court
of Appeal partly granted Mr Küchl’s appeal. Relying on section 78 of the
Copyright Act, it prohibited the publication of photographs of the claimant
which violated his legitimate interests by accusing him of unwanted homosexual
advances towards seminarians, especially involving abuse of authority, and of
engaging in sexual antics or “kinky” situations with seminarians or similar
accusations. However, it dismissed the claim for compensation.
The Court of Appeal summarised
the content of the articles published in Profil on 5, 12 and 19 July
2004 and the reasoning set forth by the Supreme Court in its decision of 15
December 2005 in the interim injunction proceedings. It went on to state as
follows:
“No factual circumstances came to light in the main proceedings
which would cause the Supreme Court to alter the manner in which it weighed the
interests at stake in the preliminary injunction proceedings.
It was established that the photograph was taken in Eisgarn
monastery at the birthday party of one of the seminarians, attended by the
claimant and four or five students of the seminary. The party was held in a
meeting room and a ‘reception room’ of the apartment made available to the
claimant in his capacity as provost of the monastery.
Protection of the private sphere encompasses all matters which,
on the basis of their information content, are typically classified as private.
This covers individuals in their home, family or other environment removed from
the public gaze (Neukamm, Bildnisschutz in Europa, 118). The
right to protection of one’s private sphere encompasses the spaces in which the
individual can rest, relax or simply let go. This includes any premises from
which the individual can exclude outsiders and escape the public gaze (Neukamm,
loc. cit., 120).
On that basis, there can be no doubt that the birthday party in
the claimant’s apartment fell within the private sphere, despite the fact that
it was attended by seminarians and took place (partly) in a ‘reception room’ in
the claimant’s apartment.
It is therefore unnecessary to further elaborate on the fact
that the concept of private life within the meaning of Article 8 ECHR is to be
construed broadly, that it extends to business and professional relationships
and that the scope of protection of private life goes beyond the home and can
even extend into the public sphere. An important consideration is whether a
person, in the specific circumstances of the case, can reasonably expect to
have his or her right to private life protected (Neukamm, loc. cit.,
213). Hence, it is beyond dispute that the photograph in question falls
(exclusively) within the claimant’s private sphere.
Furthermore, the Supreme Court previously ruled in the
preliminary injunction proceedings that the public interest in the text of the
article did not automatically justify publication of pictures of the person
concerned.
The publication of pictures depicting private conduct is not
justified on the grounds of the public’s interest in being informed (Neukamm,
op. cit., 233, and ECHR judgment of 11.1.2000, application no. 31457/96 - News
Verlag GmbH). This applies also to articles concerning private-life matters
(Neukamm, op. cit., 235). If the publication of photographs serves the
public’s interest in being informed, that interest must be weighed against the
personality rights of the person depicted. As a general rule, the latter should
prevail (Neukamm, op. cit., 236).”
The Court of Appeal also upheld the Commercial
Court’s decision in so far as the latter had dismissed Mr Küchl’s claim for
damages. It noted that damages under the Copyright Act were to be awarded only if
the general requirements laid down in the Civil Code were met. In particular,
it was necessary for the publisher to have acted culpably, with at least minor negligence.
In the present case, the applicants had based their decision to publish the
photograph on an arguable legal opinion. It was a borderline case in which a
detailed weighing of the interests at stake had eventually led to the
assessment that the publication of the photograph at issue had violated the
claimant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding
the view that the publication of the picture had an information value of its
own, while the Supreme Court had overturned their decisions. In these
circumstances, the applicants were entitled to believe that the publication of
the picture was admissible, and they had therefore not acted culpably.
The claimant and the applicants lodged
extraordinary appeals on points of law with the Supreme Court.
The Supreme Court rejected the extraordinary
appeals in a judgment of 26 March 2009, holding that the prerequisite for
it to deal with the case, namely a question of law which was of fundamental
importance for the unity of the law, was not met. With regard to the applicants’
appeal it noted that it had already given detailed reasons in its decision of
15 December 2005 explaining why, as far as the publication of the
photograph was concerned, the claimant’s interests in the protection of his
private sphere under Article 8 of the Convention outweighed the freedom to
impart information protected by Article 10 in the circumstances of the present
case. The Vienna Court of Appeal had followed that reasoning in the main
proceedings.
Finally, the Supreme Court dismissed the
applicants’ argument that the courts’ decisions in the proceedings under sections
6 and 7 of the Media Act were binding on the courts in the present case. It
held that a decision taken under sections 6 and 7 of the Media Act did not resolve
a preliminary question (Vorfrage) in relation to the claim under section
78 of the Copyright Act. There was no logical contradiction in prohibiting a
newspaper publisher from publishing a picture under section 78 of the Copyright
Act, while on the same facts dismissing a compensation claim under sections 6
and 7 of the Media Act. The finding that the requirements for granting
compensation were not met did not provide a basis for concluding that the
publication of a picture did not violate legitimate interests within the
meaning of section 78 of the Copyright Act.
The judgment was served on the applicants on 30 April
2009.
II. RELEVANT DOMESTIC LAW AND EUROPEAN
TEXTS
A. The Media Act
Section 6 of the
Media Act provides for the strict liability of the publisher, inter alia
in cases of defamation. The victim can thus claim damages from the publisher.
Section 6 reads as follows:
“(1) Where a medium publishes statements which
constitute the actus reus of disparagement, insult, derision or
defamation the victim shall have a claim against the owner of the medium
(publisher) for damages for the injury suffered ...”
(2) The right referred to in paragraph 1 above shall
not apply ...
2. in the case of defamation
(a) [where] the statements published are true or
...
(3) Where the publication concern the strictly
personal sphere, a claim under subsection 1 shall be excluded only on the
grounds set forth in ... subsection 2(2)(a) ...; in the case of subsection 2(2)(a),
this shall not apply where the published facts are directly related to public
life.”
Section 7 of the Media Act provides for a claim
for damages in cases of interference with the strictly personal sphere of an
individual’s life. It reads 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 from the media proprietor (publisher) for the damage
sustained. ...
(2) The right referred to in paragraph 1 above shall
not apply where:
(i) ...
(ii) the statements published are true and are
directly related to public life;
(iii) ...”
. For
the purpose of Section 6 of the Media Act, “defamation” is to be
understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch),
which reads 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.”
B. The Copyright Act and the Civil Code
Section 78 of the Copyright Act, in so far as
relevant, reads as follows:
“(1) Images of persons
shall neither be exhibited publicly nor in any way made accessible to the
public where injury would be caused to the legitimate interests of the persons
concerned or, if they have died without having authorised or ordered
publication, those of a close relative.”
Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch)
provides as follows:
“(1) Anybody who, as a result
of defamation, suffers real damage or loss of profit may claim compensation.
(2) The same shall apply if
anyone disseminates allegations which jeopardise a person’s reputation, income
or livelihood, the untruth of which was known or should have been known to him
or her. In this case there is also a right to request a retraction and
publication thereof ...”
C. Resolution 1165 (1998) of the Parliamentary
Assembly of the Council of Europe on the right to privacy
The Court refers to this resolution, adopted by
the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its
relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicants complained about the Vienna Court
of Appeal’s judgment of 13 December 2007 and the Supreme Court’s judgment of
26 March 2009 in the main proceedings under the Copyright Act. They
asserted that the injunction prohibiting them from further publishing Mr Küchl’s
picture in the context of specific statements had violated their right to
impart information as guaranteed by 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.”
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
1. The parties’ submissions
The applicants stressed that as a general rule
Austrian law did not prohibit the publication of a person’s picture in the mass
media. Under section 78 of the Copyright Act it was prohibited to publish a
person’s picture only if publication violated that person’s legitimate
interests.
Furthermore, the applicants asserted that Mr
Küchl had not been just an ordinary priest of the Roman Catholic Church but a
high-ranking dignitary. As provost of the Eisgarn monastery and principal of
the St Pölten seminary he had had supervisory authority and had been responsible
for the training of future priests. Moreover, it had to be taken into account
that the condemnation of homosexuality as a sin and an aberration was an
official position of the Roman Catholic Church which had been repeatedly and
vigorously advocated by Mr Küchl’s direct superior, Bishop Krenn. In that connection
the applicants submitted a number of documents to show that Bishop Krenn had
repeatedly voiced the Church’s position on homosexuality in the media, using
strong terms which had provoked equally strong reactions from other sectors of
society.
The applicants also contested the Government’s
argument that the picture at issue had been taken at a private party. They
asserted that the party had taken place in the official apartment allocated to
the claimant in his capacity as provost of Eisgarn monastery. The guests were
students of the seminary of which the claimant was principal, and the picture
showed him with one of the seminarians.
Above all, the applicants asserted that the
publication of the picture in the present case had been necessary in order to
inform the public. They stressed that both the domestic courts and the
Government had accepted that the articles contributed to a debate of public
interest which concerned the discrepancy between the official doctrine of the
Roman Catholic Church and the real lives of its dignitaries. Neither the
domestic courts nor the Government had denied that in order to report on that
issue it had been justified to disclose Mr Küchl’s identity. That being the
case, there had been no good reasons to prohibit publication of his picture. Moreover,
Mr Küchl had denied that any homosexual contacts between seminarians and
their teachers had taken place at the seminary and had also claimed that the
picture at issue did not conclusively show any such contact between him and the
seminarian P., but could be interpreted in a different way. It had therefore been
justified to publish the picture in order to add credibility to the allegations
raised in the text and to allow readers to form their own opinion as to what
could actually be seen in the photograph.
In the applicant’s contention, their interest in
the freedom to impart information, including the claimant’s picture, clearly
outweighed the latter’s interest in non-disclosure of the photograph.
For their part the Government asserted that the interference
had been justified. It had been prescribed by law, namely by section 78 of the
Copyright Act, and had served a legitimate aim, namely to protect the
reputation and the rights of others.
The Government’s submissions concentrated on the
necessity of the interference. They explained that section 78 of the Copyright
Act required a weighing of the conflicting interests under Articles 8 and 10 of
the Convention. Referring to the Court’s judgment in Von Hannover v. Germany
(no. 59320/00, ECHR 2004-VI), they emphasised that the Austrian courts
applied a strict standard when it came to interference by the press with an
individual’s private life, all the more so where the individual concerned was not
known to the general public.
While acknowledging that the claimant in the
proceedings at issue, who had been the provost of Eisgarn monastery and the
principal of the St Pölten seminary at the material time, had held a senior
position within the Roman Catholic Church, they argued that he could not be
regarded as a public figure. In particular, his physical appearance had not
been known to the general public before the publication of his picture in Profil.
Even if the claimant were to be regarded as a
public figure, he was entitled to enjoy the same protection of his private
sphere as any other person. The Court itself had underlined the special
intensity of interference with a person’s private or family life caused by
photographic reporting. The photograph at issue had been taken at a private
birthday party and depicted the intimate sphere of the claimant’s private life.
The Government noted that the essential reasons
for prohibiting the publication of the claimant’s picture were contained in the
Supreme Court’s decision of 15 December 2005 in the interim injunction
proceedings and in the Vienna Court of Appeal’s judgment of 13 December 2007. The
domestic courts had duly weighed the relevant interests: they had not
restricted the reporting of the events at the seminary, including the claimant’s
role and conduct, taking the view that it contributed to a debate of public
interest, but had found that the claimant’s interest in the protection of his
private sphere carried greater weight when it came to the publication of his
picture.
Furthermore, the Government emphasised that the
courts had also dismissed the claimant’s request for compensation, accepting
that the publication of his picture had been based on an arguable legal view and
that the applicants had therefore not acted culpably. This underlined the
“borderline nature” of the case to be determined. In sum, the courts had not exceeded
the margin of appreciation left to them.
Finally, the Government asserted that there was
no logical discrepancy between the contested decisions in the present case and
the decisions given in the proceedings under the Media Act. Those proceedings had
not concerned a request for an injunction but only the claimant’s request for
compensation, which had also been rejected.
2. The Court’s assessment
In the present case the applicants complained about
the injunction imposed on them in the main proceedings under section 78 of the
Copyright Act. This injunction prohibited them from publishing photographs of
Mr Küchl, especially in connection with allegations of unwanted sexual
advances towards seminarians involving abuse of authority or of engaging in
sexual antics or “kinky” situations with seminarians. The Court observes that
the reporting as such was not restricted, including statements about the
claimant’s alleged homosexuality and homosexual relationships with seminarians.
Thus, what is at stake here is the prohibition on publication of the claimant’s
picture in the context of specific accusations.
In that connection, the Court reiterates
that freedom of expression includes the publication of photographs (Von
Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 103, 7 February 2012 with
further references). The judgments complained of, namely the Vienna Court of
Appeal’s judgment of 13 December 2007 and the Supreme Court’s judgment of 26
March 2009, therefore constituted interference with the applicants’ right to
freedom of expression.
Such interference will breach the Convention if
it fails to satisfy the requirements of the second paragraph of Article 10. It
therefore falls to be determined whether the interference was “prescribed by
law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was
“necessary in a democratic society” for the aforesaid aim or aims.
It is not in dispute in the present case that
the interference was “prescribed by law”, namely by section 78 of the Copyright
Act, or that it served a legitimate aim, namely the protection of the rights
and reputation of others. The parties disagree, however, as to whether the
interference was “necessary in a democratic society”. While they both accept
that the present case requires a weighing of conflicting interests under
Articles 8 and 10 of the Convention, their views differ as to whether or not
the domestic courts came to the correct conclusion when carrying out that weighing
of interests.
(a) General principles
Starting from the premise that the present case
requires an examination of the fair balance that has to be struck between the
applicants’ right to freedom of expression under Article 10 of the Convention
and the claimant’s right to respect for his private life guaranteed by Article
8, the Court considers it relevant to reiterate some general principles
relating to the application of both Articles.
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 of Article 10, 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 pluralism, tolerance and broadmindedness without which there is no
“democratic society”. As set forth in Article 10, freedom of expression is
subject to exceptions, which must, however, be construed strictly, and the need
for any restrictions must be established convincingly (see, as a recent
authority, Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012, and also, among
other authorities, Handyside v. the United Kingdom, 7 December 1976,
§ 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42,
ECHR 2004-IV; and Lindon, Otchakovsky-Laurens and July
v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV).
The Court has also repeatedly emphasised the
essential role played by the press in a democratic society. Although the press
must not overstep certain bounds, regarding in particular protection of the
reputation and 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 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” (see, as a recent authority, Axel Springer AG, cited
above, § 79; Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III;
and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §
71, ECHR 2004-XI).
Journalistic freedom also covers possible
recourse to a degree of exaggeration, or even provocation. Furthermore, it is
not for the Court, any more than it is for the national courts, to substitute
its own views for those of the press as to what techniques of reporting should
be adopted in a particular case (see Axel Springer AG, cited above, §
81; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298;
and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February
2009).
While freedom of expression
includes the publication of photographs, this is nonetheless an area in which
the protection of the rights and reputation of others takes on particular
importance, as the photographs may contain very personal or even intimate
information about an individual and his or her family (see Von Hannover (no.
2), cited above, § 103, and Eerikäinen and Others, cited above,
§ 70).
The adjective “necessary” within the meaning of
Article 10 § 2 implies the existence of a “pressing social need”. In
assessing whether such a need exists and what measures should be adopted to
deal with it, the national authorities have a certain margin of appreciation.
This power of appreciation is not 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. The Court’s task in exercising its supervisory function is to
look at the interference in the light of the case as a whole and determine
whether the reasons adduced by the national authorities to justify it are “relevant
and sufficient” and whether it was “proportionate to the legitimate aim
pursued” (see, among other authorities, Bladet Tromsø and Stensaas,
cited above, § 58, and Lindon, Otchakovsky-Laurens and July, cited
above, § 45).
In respect of Article 8, the Court has already
held that the concept of private life extends to aspects relating to personal
identity, such as a person’s name, photograph or physical and moral integrity
(see Von Hannover (no. 2), cited above, § 95). Regarding photographs,
the Court has stated that a person’s image constitutes one of the chief
attributes of his or her personality, as it reveals the person’s unique
characteristics and distinguishes the person from his or her peers. The right
to the protection of one’s image is thus one of the essential components of
personal development. It mainly presupposes the individual’s right to control
the use of that image, including the right to refuse publication thereof (ibid.,
§ 96; see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, §
48, 4 June 2009, and Hachette Filipacchi Associés (ICI PARIS)
v. France, no. 12268/03, § 53,
23 July 2009).
In certain circumstances, even where a person is
known to the general public, he or she may rely on a “legitimate expectation”
of protection of and respect for his or her private life (see Von Hannover
(no. 2), cited above, § 97).
70. Moreover, the Court has recently set
out the relevant principles to be applied when examining the necessity of an instance
of interference with the right to freedom of expression in the interests of the
“protection of the reputation or rights of others”. It noted that in such cases
the Court may be required to verify whether the domestic authorities struck a
fair balance when protecting two values guaranteed by the Convention which may
come into conflict with each other in certain cases, namely, on the one hand,
freedom of expression protected by Article 10 and, on the other, the right to
respect for private life enshirned in Article 8 (see Axel Springer AG, cited above, § 84, and MGN
Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
71. In Von Hannover (no. 2) (cited
above, §§ 104-107) and Axel Springer AG (cited above,
§§ 85-88), the Court defined the Contracting States’ margin of appreciation and
its own role in balancing these two conflicting interests. The relevant
paragraphs of the latter judgment read as follows:
“85. The Court reiterates that, under Article 10 of
the Convention, the Contracting States enjoy a certain margin of appreciation
in assessing whether and to what extent an interference with the freedom of
expression guaranteed under that provision is necessary (see Tammer v.
Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and
Baadsgaard, cited above, § 68).
86. However, this margin goes hand in hand with
European supervision, embracing both the legislation and the decisions applying
it, even those delivered by an independent court (see Karhuvaara and
Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X, and Flinkkilä
and Others, cited above, § 70).
In exercising its supervisory function, the Court’s task is not to take the
place of the national courts, but rather to review, in the light of the case as
a whole, whether the decisions they have taken pursuant to their power of
appreciation are compatible with the provisions of the Convention relied on (see
Petrenco v. Moldova, no. 20928/05, §
54, 30 March 2010; Polanco
Torres and Movilla Polanco,
cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2
November 2010).
87. In
cases such as the present one the Court considers that the outcome of the
application should not, in principle, vary according to whether it has been
lodged with the Court under Article 10 of the Convention by the publisher who
has published the offending article or under Article 8 of the Convention by the
person who was the subject of that article. Indeed, as a matter of principle
these rights deserve equal respect (see Hachette Filipacchi Associés (ICI
PARIS) v. France, no. 12268/03,
§ 41, 23 July 2009; Timciuc
v. Romania (dec.), no. 28999/03,
§ 144, 12 October 2010; and Mosley v. the United Kingdom,
no. 48009/08, § 111, 10 May
2011; see also point 11 of the Resolution of the Parliamentary
Assembly - paragraph 51 above). Accordingly, the margin of appreciation should
in principle be the same in both cases.
88. Where the balancing exercise between those two
rights has been undertaken by the national authorities in conformity with the
criteria laid down in the Court’s case-law, the Court would require strong
reasons to substitute its view for that of the domestic courts (see MGN
Limited, cited above, §§ 150
and 155, and Palomo Sánchez and Others v. Spain [GC], nos.
28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).”
The Court went on to identify
a number of criteria as being relevant where the right of freedom of expression
is being balanced against the right to respect for private life (see Von
Hannover (no. 2), cited above, §§ 109-113, and Axel Springer AG,
cited above, §§ 89-95;), namely
(i) contribution to a debate of general interest
(ii) how well known is the person concerned and what is the
subject of the report?
(iii) prior conduct of the person concerned
(iv) method of obtaining the information and its veracity/
circumstances in which the photographs were taken
(v) content, form and consequences of the publication
(vi) severity of
the sanction imposed
(b) Application of these principles
to the present case
The Court therefore has to examine whether the
domestic courts balanced Mr Küchl’s right to protection of his image, which
forms part of his right to respect for his private life, against the applicants’
right to freedom of expression, in accordance with the criteria laid down in
its case-law (see paragraph 72 above).
The Court observes that the essential reasons
for the injunction complained of were contained in the Vienna Court of Appeal’s
decision of 13 December 2007. That decision referred in part to the
Supreme Court’s decision of 15 December 2005 in the preliminary injunction
proceedings. The Court’s examination will therefore concentrate on the reasons
given in those decisions. Moreover, it will take into account the domestic
courts’ judgments under the Media Act.
(i) Contribution to a debate of general interest
The Court reiterates that in the balancing of
interests under Articles 8 and 10 of the Convention, the contribution made
by the photos or articles in the press is an essential criterion (see Von
Hannover (no. 2), cited above, § 109 with further references). It is not in
dispute in the present case that the articles published by Profil on 5,
12 and 19 July 2004 contributed to a public debate. Throughout the entire
proceedings the domestic courts accepted that the homosexuality of officials of
the Roman Catholic Church was a subject of public discussion. Moreover, they
found that in view of that Church’s position, which condemned homosexuality as
a sin and an aberration, the public had a right to be informed about the
conduct of a dignitary of the Church which was in open contradiction with that
position.
The Court agrees with this assessment. It notes in particular that the
definition of what constitutes a subject of general interest will depend on the
circumstances of the case. Furthermore, it points out that it has recognised
the existence of such an interest not only where the published material concerned
political issues or crimes but also where it concerned sporting issues or
performing artists (see Von Hannover (no. 2), cited above, § 109, and Axel
Springer AG, cited above, § 90 with further references). In the Court’s
view, material like that at issue, relating to the moral position advocated by
an influential religious community and to the question whether Church
dignitaries live up to their Church’s proclaimed standards, also contributes to
a debate of general interest.
Moreover, the Court would stress that the domestic
courts considered that the applicants were entitled to report on that issue (see
the proceedings under the Media Act, paragraphs 11-18 above and, in particular,
the Supreme Court’s decision of 15 December 2005 in the preliminary injunction
proceedings under the Copyright Act, paragraph 25 above). It was not in
dispute, either, that the applicants were entitled to disclose Mr Küchl’s name (in
that respect the case differs from Standard Verlags GmbH v. Austria (no. 3), no. 34702/07, § 44, 10
January 2012, in which the domestic courts found that a daily newspaper had not
been entitled to disclose the identity of a leading bank manager in the context
of a banking scandal; the Court found a violation of Article 10 in that case).
In the present case, the domestic courts differed exclusively on the point
whether, in addition to the articles, the applicants were entitled to publish Mr Küchl’s
picture in the context of specific statements. While the Commercial Court refused
to grant the injunction requested by the latter, the Vienna Court of Appeal
granted it in its decision of 13 December 2007, which was confirmed by the
Supreme Court on 26 March 2009.
(ii) How well known is the person concerned and what
is the subject of the report?
The role or function of the person concerned and
the nature of the activities that are the subject of the report and/or
photograph constitute another important criterion, related to the preceding
one. In that connection a distinction has to be made between private
individuals and persons acting in a public context, as political figures or
public figures. Accordingly, whilst a private individual unknown to the public
may claim particular protection of his or her right to private life, the same
is not true of public figures. A fundamental distinction needs to be made
between reporting facts capable of contributing to a debate in a democratic
society, relating to politicians in the exercise of their official functions
for example, and reporting details of the private life of an individual who
does not exercise such functions (see Von Hannover (no. 2), cited
above, § 110 with further references).
Regarding the question of how well known Mr
Küchl was, the Vienna Court of Appeal and the Supreme Court did not consider
the claimant to be a public figure. While they noted that he was a high-ranking
dignitary of the Roman Catholic Church, they observed that he was not known to
the public at large.
With regard to the subject of the articles, the
domestic courts found that the main focus was on the discrepancy between the
official position of the Roman Catholic Church in respect of homosexuality and
the private conduct of representatives of that Church. They had regard to the
fact that the claimant was a high-ranking dignitary of the Roman Catholic
Church. Moreover, they took account of the fact that the events reported in the
articles (including homosexual relationships between seminarians and also
between seminarians and their superiors) had occurred at the seminary, of which
the claimant had been the principal at the material time.
Nevertheless, they made a distinction between
the articles as such and the publication of the claimant’s picture. In its
decision of 13 December 2007 the Vienna Court of Appeal explicitly noted
that the fact that there was a public interest in the articles did not
automatically justify the publication of photographs of the person concerned
(see paragraph 31 above).
The Court agrees with this assessment. It
reiterates that it is in the first place for the domestic courts to assess how
well known a person is, especially where that person is mainly known at
national level (Axel Springer AG, cited above, § 98). Moreover, as
regards the distinction between the report on the one hand and the picture on
the other hand, the Court’s own case-law acknowledges that the protection of
the rights and reputation of others takes on particular importance in the
context of the publication of photographs which may contain very personal or
even intimate information (see paragraph 66 above). There can therefore be no
objection to distinguishing between the publication of a text and the
publication of a photograph. In the case of MGN Limited (cited above,
§§ 148-156), for instance, the Court found no violation of Article 10 in
respect of decisions by the domestic courts which had found that the
publication of a report dealing with the drug addiction of a famous model was justified,
but had considered that the publication of additional information about the
details of her treatment and the publication of her picture amounted to a breach
of confidence.
(iii) Prior conduct of the person concerned
The domestic courts’ decisions do not contain
much information in respect of Mr Küchl’s prior conduct. The Court observes
that it may be assumed that he was relatively well known in the St Pölten
diocese. However, in contrast to Bishop Krenn, the bishop of the diocese, who
had repeatedly made statements in the media condemning homosexuality in strong
terms and provoking equally strong reactions, Mr Küchl had apparently not
contributed to that debate nor had he entered the public scene in any other way
before the events which gave rise to the publication of the article at issue.
(iv) Circumstances in which the photographs were taken
The Court has already held that the context and
circumstances in which the published photographs were taken cannot be
disregarded. In that connection regard must be had to whether the person
photographed consented to the taking of the photos and their publication or
whether this was done without their knowledge or by subterfuge or other illicit
means. Regard must also be had to the nature or seriousness of the intrusion
and the consequences of the publication of the photo for the person concerned
(see Von Hannover (no. 2), cited above, § 113).
The domestic courts attached much weight to the
fact that the photograph had been taken at a private birthday party which had
taken place in the claimant’s apartment at Eisgarn monastery. The Vienna Court
of Appeal noted that a person’s private sphere included those premises from
which he or she could exclude third persons. This was clearly the case
regarding the claimant’s apartment. Moreover, it noted that another important
element was whether, in the circumstances, the person concerned could expect
his or her private life to be protected, which was also the case here.
The Court broadly agrees with this assessment, while
noting that, seen against the particular background of the articles, there was
a link with Mr Küchl’s function as principal of the seminary, as the
guests were exclusively seminarians. However, the party took place in the
claimant’s apartment, which qualifies as his “home” under Article 8 of the
Convention. The photograph was taken by one of the seminarians and was not
intended for the eyes of any outsiders. It appears from the articles published
in Profil that the photograph was part of the material seized during the
search of the premises of the seminary. While the question how the applicants
had acquired the picture was not at issue in the domestic proceedings, it is
clear that they obtained it without Mr Küchl’s consent.
(v) Content, form and consequences of the publication
The way on which the photo or report are
published and the manner in which the person concerned is represented in the
photo or report may also be factors to be taken into consideration (see Von
Hannover (no. 2), cited above § 112).
The publication which is of main interest here
is the article published in Profil on 12 July 2004, as it was the first
one to be accompanied by the photograph at issue. Moreover, it contained a
detailed report portraying the St Pölten diocese as being in disarray over
the events at the seminary. It repeated the information about the seizure of
child pornography material and about homosexual relationships between
seminarians as well as between seminarians and their superiors, but explicitly
stated that there was no abuse of authority involved, as had been suggested in
the previous article published on 5 July. The article also devoted space to Mr.
Küchl’s replies to the allegations raised, including his view that the photograph
did not show any homosexual contact between him and the seminarian but could be
interpreted in different ways.
The domestic courts, in particular the Supreme
Court in its decision in the preliminary injunction proceedings, to which the
Vienna Court of Appeal referred in the main proceedings, noted in particular
the intrusion into the intimate sphere of the claimant’s private life and the pillorying
effect of the publication of the picture in conjunction with the article. The Supreme
Court also dealt with the applicants’ argument that the publication of the
photograph had been necessary in order to provide proof of the allegations
raised, namely of homosexual relationships between seminarians and their
superiors, which had been denied by Mr Küchl. While accepting that there was
some force to this argument, the Supreme Court noted the intimate nature of the
information conveyed by the photograph. It added that sexual relationships
between adults fell within the sphere protected by Article 8. This
protection applied also to representatives of the Church, even if their conduct
was in contradiction with the Church’s position. In conclusion, the Supreme
Court found that the claimant’s interest in the protection of his image prevailed,
as it was possible to inform the public adequately about the matter at issue by
reporting the specific facts and referring to the existence of a photograph or
photographs as evidence.
The Court agrees with this assessment. The photograph
showed an intimate detail of Mr Küchl’s private life. The Court would stress that,
had it not been for the particular context - namely the Roman Catholic Church’s
position in relation to homosexuality and the fact that he was a representative
of that Church - such an intimate aspect of Mr Küchl’s private life,
concerning homosexual relationships between consenting adults, would not have warranted
any coverage.
(vi) Severity of the sanction imposed on the
applicants
Turning to the severity of the sanction imposed,
the Court notes that the injunction complained of limited the applicants in
their editorial choice as to how to present any future articles on the subject
at issue. However, as the Government pointed out, the domestic courts did not
award Mr Küchl compensation under the Copyright Act taken in conjunction
with the provisions of the Civil Code. The Court of Appeal pointed out that the
case was of a borderline nature. It found that the applicants had not acted
culpably as they had based their decision to publish the photograph on an
arguable legal opinion. In that connection the Court of Appeal noted that, in
the preliminary injunction proceedings, both it and the Commercial Court had
considered that the publication of the photograph at issue was admissible,
while only a detailed examination had eventually led to the conclusion that Mr.
Küchl’s interests should prevail.
Having regard to these considerations, the Court
considers that the sanction imposed was balanced and does not disclose any lack
of proportionality.
(vii) Conclusion
Finally, the Court notes that the Supreme Court,
in its final decision of 26 March 2009, addressed the question of a possible
contradiction between the decisions taken in the proceedings under the Media
Act on the one hand and those taken in the proceedings under the Copyright Act
on the other hand. It found that the proceedings under the Media Act did not resolve
a preliminary question in respect of the proceedings under the Copyright Act,
nor was there a logical contradiction between the prohibition on publishing a
photograph under section 78 of the Copyright Act and the refusal to grant
compensation under sections 6 and 7 of the Media Act in relation to the article
at issue.
In conclusion, the Court considers that the
domestic courts applied the criteria established by the Court’s case-law when imposing
the contested injunction under section 78 of the Copyright Act. They gave “relevant
and sufficient” reasons for arriving at the conclusion that - in contrast to
the text of the articles, which was not made subject to any restrictions - the
future publication of the photograph in the context of specific allegations was
to be prohibited, as the claimant’s interest in the protection of the intimate
sphere of his private life outweighed the interest of the applicants in the further
publication of the picture. The Court does not see any strong reasons to
substitute its own view for that of the contested decisions of the domestic
courts.
The foregoing considerations are sufficient for
the Court to conclude that there has been no violation of Article 10 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 4 December 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
