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FIRST
SECTION
CASE OF KRONE VERLAG GMBH & CO KG AND
KRONE
MULTIMEDIA GMBH & CO KG v. AUSTRIA
(Application
no. 33497/07)
JUDGMENT
STRASBOURG
17
January 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 Krone Verlag GmbH &
Co KG and Krone Multimedia GmbH & Co KG v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 December 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33497/07)
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
Krone Verlag GmbH & Co. KG, a limited liability
company with its registered office in Vienna (“the first
applicant company”) and Krone Multimedia GmbH & Co. KG,
also a limited liability company with its registered office in Vienna
(“the second applicant company”), on 1 August 2007.
- Both
companies are represented before the Court by Ebert Huber Liebmann
Rechtsanwälte GmbH, a law firm based 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 companies alleged that the judgments under the Media Act
ordering them to pay damages had infringed their right to freedom of
expression under Article 10 of the Convention.
- On
13 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
first applicant company is the owner and publisher of the daily
newspaper Kronen Zeitung; the second applicant company is the
owner of the online newspaper www.krone.at.
A. The background to the case
- In
November 2003 criminal investigations were launched in respect of A
and B who were suspected of the repeated and serious ill-treatment
and sexual abuse of 10-year-old C, which had caused severe injuries.
C is A’s biological daughter and B’s stepdaughter. C was
taken to hospital and several media reported the case.
- At
that time D, C’s biological mother, who had learned from the
media about what had happened to her daughter, wanted to see her but,
since she did not have custody of her, this request was refused.
Thereupon she contacted the first applicant company in the hope that
it would help her obtain contact with C. C.M., a journalist for the
first applicant company, visited her at her home, took pictures of
her, received from D a picture showing C at the age of three years,
accompanied D to the hospital where C was staying and took further
pictures there. On the basis of this material, at the end of 2003
several articles on the case of C were published in Kronen
Zeitung, as well as a call for donations (Spendenaufruf)
for C. Once the X Regional Youth Welfare Agency
(Jugendwohlfahrtsträger des Landes X) became aware
of these events it advised D and her spouse that it would be in C’s
best interests if they refrained from providing pictures of her and
further information to the media.
- After
C left hospital in May 2004 she stayed with D. On 9 December
2004 custody of C was transferred to the Regional Youth Welfare
Agency for the period of 1 December 2003 to 29 November 2004 and
then from 30 November 2004 onwards it was transferred to D.
- The
trial of B and A was held in February 2005 and media interest in the
case grew again. At the same time C had a relapse and began suffering
from severe psychological problems again, making it necessary for her
to be re-admitted to hospital.
- On
21 February 2005 A and B were convicted of aggravated sexual abuse of
minors (schwerer sexueller Missbrauch von Unmündigen),
deliberate aggravated bodily harm (absichtliche schwere
Körperverletzung) and ill-treatment of minors (Quälen
von Unmündigen). They were sentenced to fifteen
years’ imprisonment and ordered to pay compensation for
non-pecuniary damage.
- The
first applicant company published two articles in Kronen Zeitung
on 16 and 22 February 2005 respectively, using the first name of C,
the full names of A and B, and illustrating them with photographs of
A and B The second applicant company published two articles on its
website www.krone.at on 16 and 22 February 2005 and, in
addition to the information contained in the articles published in
Kronen Zeitung, it also published photos of C, including a
close-up of her face.
- On
12 May 2005, with D’s consent, the District Court transferred
custody rights in relation to one specific task back to the Regional
Youth Welfare Agency, namely on the issue whether, in respect of the
reporting on the trial of A and B, C had compensation claims against
certain newspapers and, if necessary, to take the appropriate
measures.
B. The articles which appeared in Kronen Zeitung and on
www.krone.at
- On
16 February 2005 an article
was published in the first applicant company’s newspaper
(Kronen Zeitung) entitled “C case: when humans turn into
animals” (“Fall C: Wenn Menschen zum Tier werden”),
which read as follows:
“Modesty – what a fine word. A word that
presupposes respect. But how out of place coming from the mouth of a
father who kicked his 10-year-old daughter with his bare feet until
several of her ribs were broken. How out of place when the same
father claims that he did not treat his daughter’s injuries
caused by a red-hot iron because modesty prevented him from touching
her breasts...
X Regional Criminal Court. Three judges and eight
jurors have to pronounce sentence in three sets of proceedings
against A and B (both [age]): A and B, known to Krone readers
as the parent torturers. Their victim: C, A’s daughter from his
first marriage. A girl who, after her parents’ divorce, lived
for a long time with her grandparents in Y. A child who couldn’t
wait to join her father and his second wife B here in X – and
ended up in hell. Literally ill-treated till she bled. Tortured and
abused.
Members of the jury turn ghostly white when public
prosecutor T. reads from the prosecution file: ‘C was injured
with red-hot spoons, deprived of her virginity with a cooking spoon,
burnt with a hot iron. She was hurled against the wall until her
skull fractured. C was also tied up to her bed in prayer position for
nights on end. She was badly injured with a kitchen knife...’
Why? Sometimes it is not important why human beings
behave like animals. Sometimes the facts are enough. And yet Judge
J.J. proceeds brilliantly to shed light on every aspect of this crime
against a child. For hours on end he listens patiently to the
whimpering defence of the father. He patiently sits through the
hair-raising account of the stepmother.
The accused agree on only one thing. Neither will admit
responsibility. Just a touch of corporal punishment to keep family
life intact – that much they admit. Both say they were afraid
of or were dominated by the other.
A: ‘I’m fond of all five (!) of my children,
including C. I was dominated by my wife, and when she told me that C
masturbated I believed her and had to do something’ he says.
And his wife: ‘I just wanted to protect my other children from
C so I hit her once and I might have pulled her hair.’
Be that as it may, the way the couple defend themselves
in court is nothing short of disgusting. As I just said, the facts
speak volumes.
You listen to what went on for weeks in the flat in P.
Street. You close your eyes – and still see C. Who actually
delivered the blows ceases to matter.
What matters is that C is now living safely with her
real mother and a caring stepfather. She has just spent her first
ever holiday in Tyrol. She’s made friends in a new school.
She can certainly not understand everything that
happened. It can only be hoped that one day she’ll be able to
forget. And that the father’s wish (‘I’d like to
see my C again some day’) is never granted.”
- On
the same day the second applicant company published an article on its
website (www.krone.at) entitled “Start of the trial in
the C case” (Auftakt zum Prozess im Fall C). Its text is
identical to the above article.
- On
22 February 2005 a further article was published in the first
applicant company’s newspaper (Kronen Zeitung), entitled
“Maximum sentence for parent torturers!” (“Höchststrafe
für Folter-Eltern!”), which read as follows:
“The triangular shape of the iron is like a
permanent reminder to C, ‘branded’ into her child’s
body. ‘The violence against this girl ranks as one of the most
abhorrent of crimes’ says Judge J.J. in pronouncing judgment on
the parent torturers. A total of thirty years’ in prison –
the maximum sentence.
What must C’s small body have endured? What
thoughts must have gone through the 10-year-old girl’s head
when her stepmother and her father either ill-treated her or watched
the other do it?
It’s not the sober words of forensic expert C.R.
that send a shudder down your spine. It’s the thought of what
the girl must have endured before ending up in hospital with multiple
rib fractures, a fractured skull, burns to her skin, cuts going right
through to the bone, stripped of her virginity and dignity. A child’s
mind damaged beyond repair.
The ‘parents’ listen with bowed heads to
what the experts say about ‘their child’. They hear how
cosmetic surgery can reconstruct, but how no medicine can cure the
psychological damage. The effects of her ordeal will remain with her
for life.
‘She was a very nice, quiet child’ says her
former head teacher. ‘We never suspected anything. Her father
enquired about her lovingly. When he came in to say that C would not
be attending any more because she was in Yugoslavia, no one imagined
that she was lying at home injured.”
- On
the same day the second applicant company published an article on its
website (www.krone.at) entitled “Maximum sentence for
parents in C case” (“Höchststrafe für Eltern
im Fall C”). Its text is identical to the above article.
C. The proceedings under the Media Act
- On
9 August 2005 C, represented by the Regional Youth Welfare Agency,
filed a claim for compensation against the first applicant company,
relying on section 7a of the Media Act on the ground that the first
applicant company had caused her suffering by revealing her identity
as the victim of a criminal offence by publishing her first name, the
full names and pictures of A and B in two articles which had appeared
on 16 and 22 February 2005. C also filed a compensation claim
against the second applicant company relying on sections 7 and 7a of
the Media Act for revealing her identity as the victim of a criminal
offence and for violating her right to protection of her strictly
private life (höchstpersönlicher Lebensbereich) in
two articles published on 16 and 22 February 2005.
- On
27 June 2006 the X Regional Criminal Court (Landesgericht für
Strafsachen) granted both requests for compensation. As regards
the first applicant company it found that the two articles published
in the newspaper Kronen Zeitung on 16 and 22 February 2005 had
violated C’s right to protection of her identity as the victim
of a criminal offence under section 7a of the Media Act and ordered
the first applicant company to pay 4,000 euros (EUR) in
compensation to C for each of the articles, altogether EUR 8,000.
It also found that C was entitled to compensation from the second
applicant company as the articles published on its website on 16 and
22 February 2005, including photos of her, had violated her
right to protection of her identity as the victim of a criminal
offence and had also interfered with her strictly private life in a
manner which exposed and compromised her in public, thereby breaching
her rights under section 7 of the Media Act. The Regional Court
ordered the second applicant company to pay EUR 6,000 in compensation
to C for each of the articles, altogether EUR 12,000. It also
ordered the applicant companies to publish a summary of its judgment.
- As
regards the applicant companies’ argument that D, C’s
biological mother, had consented to the disclosure of C’s
identity and the publication of photos of her, the Regional Court,
having heard as witnesses D, her husband, and C.M., a journalist
writing for the applicant companies, considered that at the time of
the publication of the impugned articles there had been no valid
consent as neither the person with custody of C nor any other
reference person (Bezugsperson) had consented to the
disclosure of C’s identity or the publication of pictures of
her. Even considering that D had validly consented to the applicant
companies’ reporting on the case of C and to publishing
pictures of her back in 2003, that consent could not automatically
cover publications two years later in the context of the trial of A
and B. After such a long period of time had passed, confirmation of
D’s consent should have been sought as in case of doubt nobody
can be deemed to have consented to an interference with his or her
personality rights for an indefinite period of time. Moreover, in
2005 D had explicitly refused to give her consent to reporting in
which C’s identity would be revealed to the public.
- As
regards the compensation claim under section 7 of the Media Act, the
Regional Court found that a person was entitled to compensation if
his or her strictly private sphere had been discussed in the media in
a manner which was apt to expose and compromise him or her in public.
Into this strictly private sphere fall the inner circle of one’s
private life (engster Bereich der menschlichen Intimsphäre),
emotions and physical sensations, one’s sexual life, and
contacts with one’s closest persons of confidence (Kontakt
mit engsten Vertrauten). The lurid presentation of the
publications at issue, which made public highly sensitive details of
the ill-treatment and sexual abuse to which C had been subjected and
which were particularly humiliating, had interfered with C’s
most intimate personal sphere. In weighing the interests of the
applicant companies against those of C, the Regional Court considered
that the offensive details had not been necessary for informing the
reader even in a detailed manner on the case of C, while on the other
hand, a minor victim of crimes of this kind was entitled to
particularly strong protection. The Regional Court concluded that C’s
interests protected by section 7 of the Media Act had not been
respected and that she was therefore entitled to compensation.
- As
regards the compensation claim under section 7a of the Media Act the
Regional Court found that by mentioning the first name of the victim,
her age, the full names of the offenders, indicating their family
relationship to the victim, by publishing pictures of the father and
the stepmother and in two articles even publishing photos of her, the
victim became recognisable to a wide number of persons beyond the
circle of those directly informed.
- In
the Regional Court’s view there was no predominant public
interest which would have made revealing the victim’s identity
permissible. Such a predominant public interest must relate to the
identity of the person, and that particular information should have a
genuine news value. A merely general interest in appropriate press
reporting on criminal cases was not sufficient. C was not a public
figure and the mere fact that she had become the victim of a crime
which attracted considerable public attention was not sufficient to
consider her a person connected with public life. Also, the fact that
the media had already reported on her in 2003, in some cases
revealing her identity, did not make her a person connected with
public life because a considerable amount of time had passed in the
meantime and a newspaper’s readership changed constantly. A
genuine interest in the identity of the victim could not be
established. There was no predominant public interest in revealing
the identity of the offenders as the public could be informed on the
psychological dynamics of crimes of violence and sexual abuse
committed within the family without revealing the identity of the
victim. Therefore, these articles, which had described in detail the
severe ill treatment of the victim, constituted an intrusion
into the victim’s strictly private life and violated her
interest in remaining anonymous. She was therefore entitled to
compensation on this ground as well.
- As
to the amount of the compensation, the Regional Court stated that it
had taken into account the particular gravity of the interference and
the particularly large dissemination of the applicant companies’
media. As regards the second applicant company, a higher amount had
to be awarded as the compensation was based on two grounds.
- On
11 October 2006 the applicant companies appealed. They argued that
there had been a predominant public interest in being informed of the
identity of the offenders. The role of the media as public watchdog
meant in the present case that they had the task of informing the
public about a defenceless child who had become the victim in a
family drama and to warn the public through giving a detailed report
including personal details of the offenders and the victim, which was
necessary for a public discussion of these events. They argued
further that the reporting had been allowed because D had given her
consent.
- On
19 February 2007 the X Court of Appeal dismissed the appeal. It found
that according to section 7a of the Media Act the identity of the
victim of a criminal offence could only be revealed if there was a
predominant public interest in that specific item of information. The
permissibility of revealing the identity of an offender did not mean
that the identity of the victim could also be disclosed. This
question had to be examined separately and carefully. C was not a
public figure nor was she a person otherwise connected with public
life. Even accepting that there was a public interest in being
informed of crimes of violence and sexual abuse committed within the
family, that interest could be met without revealing the victim’s
identity. Also, the conditions for compensation under section 7
of the Media Act had been met because the articles at issue contained
a detailed description of the criminal acts committed, in particular
of the injuries caused including the defloration of the victim, and
thereby had discussed her strictly private life in a manner that was
apt to expose and compromise her in public. As to the alleged consent
of D to the applicant companies’ publications, the Court of
Appeal found that the Regional Court had properly examined this
matter and had concluded that there had been no valid consent. Given
that the maximum amount of compensation was EUR 20,000, the sums
actually fixed were moderate.
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.”
III. RELEVANT COUNCIL OF EUROPE CONVENTIONS AND DOCUMENTS
- Article
31 of the Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse of 25 October 2007,
CETS No. 201, in so far as relevant reads as follows:
“Article 31 – General measures of
protection
(1) Each party shall take the necessary
legislative or other measures to protect the rights and interests of
victims, including their special needs as witnesses, at all stages of
investigations and criminal proceedings, in particular by:
...
(e) protecting their privacy, their identity
and their image and by taking measures in accordance with
international law to prevent the public dissemination of any
information that could lead to their identification;”
- In
the Explanatory Report to the Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse, paragraph 222
gives the following comment on Article 31 of that Convention:
“The article goes on to list a number of
procedural rules designed to implement the general principles set out
in Article 31: the possibility for victims of being heard, of
supplying evidence, of having their privacy, particularly their
identity and image protected, and of being protected against any risk
of retaliation and repeat victimisation. The negotiators wished to
stress that the protection of the victim’s identity, image and
privacy extends to the risk of “public” disclosure, and
that these requirements should not prevent this information being
revealed in the context of the actual proceedings, in order to
respect the principles that both parties must be heard and the
inherent rights of the defence during a criminal prosecution.”
- On
28 June 1985 the Committee of Ministers of the Council of Europe
adopted Recommendation Rec(85)11 on the position of the victim in the
framework of criminal law and procedure. In section F (Protection of
privacy) point 15 reads as follows:
“Information and public relations policy in
connection with the investigation and trial of offences should give
due consideration to the need to protect the victim from any
publicity which will unduly affect his private life and dignity. If
the type of offence or the particular status or personal situation
and safety of the victim make such a special protection necessary,
either the trial before the judgment should be held in camera or
disclosure or publication of personal information should be
restricted to whatever extent is appropriate;”
- On
31 October 2001 the Committee of Ministers of the Council of Europe
adopted Recommendation Rec(2001)16 on the protection of children
against sexual exploitation. In Article III (Criminal law, procedure
and coercive measures in general) point 32 reads as follows:
“Ensure throughout judicial, mediation or
administrative proceedings the confidentiality of records and respect
for the privacy of children who have been victims of sexual
exploitation.”
- On
10 July 2003 the Committee of Ministers of the Council of Europe
adopted Recommendation Rec(2003)13 on the provision of information
through the media in relation to criminal proceedings. The Appendix
to that Recommendation contains the following principles:
“Principle 1 - Information of the public via
the media
The public must be able to receive information about the
activities of judicial authorities and police services through the
media. Therefore, journalists must be able to freely report and
comment on the functioning of the criminal justice system, subject
only to the limitations provided for under the following principles.
...
Principle 8 - Protection of privacy in the
context of ongoing criminal proceedings
The provision of information about suspects, accused or
convicted persons or other parties to criminal proceedings should
respect their right to protection of privacy in accordance with
Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and
convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their
identification may have on the persons referred to in this Principle.
An even stronger protection is recommended to parties
who are minors, to victims of criminal offences, to witnesses and to
the families of suspects, the accused and convicted persons. ...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant companies complained under Article 10 of the Convention
that the judgments of the Austrian courts had violated their 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 X
Regional Court’s judgment of 27 June 2006, upheld by the X
Court of Appeal, which awarded damages to C 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 companies maintained that the
interference with their right to impart information had not been
necessary in a democratic society as there had been an overriding
public interest in reporting in every detail on the case in issue.
The applicant companies’ reporting concentrated on the
perpetrators of the crime, but in view of the very nature of the
criminal offence – violence and sexual abuse within the family
– this meant that reporting on the offenders, that is the
parents, and the criminal proceedings against them, necessarily
revealed the identity of the victim C. The press must be allowed to
report in an identifying manner on crimes of sexual abuse of minors
within the family revealing the identity of the offender, as accurate
and detailed reporting also served to protect and help the victims of
such crimes. A restriction on detailed reporting and on revealing the
identity of the offenders was not only in contradiction to Article 10
of the Convention but also against the principle of victim protection
as it would protect the offenders from public attention but not the
victim.
- The
applicant companies argued further that in any event they had been
allowed to report on the case in the manner they did in the articles
at issue as they had been authorised to do so by D, the biological
mother of C, in 2003. That authorisation logically extended to the
publication of the articles on the trial against A and B
- The
Government, while acknowledging the essential role played by the
press as “public watchdog”, asserted that in the present
case the interference with the applicant companies’ 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 companies’ interest in
imparting information on an issue of public interest against the
rights of the victim to the protection of her privacy which were
equally protected by the Convention, namely the right to respect for
her identity, protected by Article 8 as part of a person’s
private life, as well as Article 31 § 1 (e) of the Council
of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse and various other instruments of the
Council of Europe. The necessity to carry out such a weighing of
interests was laid down in section 7a (1) subparagraph (1) of the
Media Act.
- The
Austrian courts found that the articles published by the applicant
companies constituted an intrusion into the strictly private life of
C, a minor. In its judgment of 27 June 2006 the Regional Court
explained in detail that even though it was in principle allowed to
publish an article identifying the offender, this did not necessarily
allow a report in which the victim of the crime could be identified.
In the present case, C’s interests in her anonymity outweighed
in the particular circumstances of the present case the applicant
companies’ interest in the disclosure of the identity of the
offenders. The disclosure of the identity of the victim was
irrelevant for understanding the details of the crime of which C had
been the victim and this specific detail was also not necessary to
raise public awareness for crimes of violence and sexual abuse within
the family. In situations such as the one in the present case the
State had a positive obligation to ensure effective protection
against violations of the personal integrity of children, as a
particularly vulnerable group, in particular in the event of sexual
abuse.
- The
Government also argued that the identity of the victim had not
already been known at the time of the publication of the articles at
issue because in the press articles of 2003 the victims and the
offenders had only been mentioned by their first names.
- Lastly,
the Government argued that the amount of compensation awarded to C,
namely EUR 8,000 as regards the first applicant company and
EUR 12,000 as regards the second applicant company was not
disproportionate, as that figure had to be seen against the
background of the wide dissemination of the information by the
applicant company and its influence 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 of 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 provide 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). Not only do the media have the
task of imparting such information and ideas, the public has a right
to receive them. Were it otherwise, the press would be unable to play
its vital role of “public watchdog” (see, among many
authorities, Thorgeir Thorgeirson v. Iceland,
25 June 1992, § 63, Series A no. 239).
- The
subject matter at issue in this case – the disclosure of the
identity of a victim of a criminal offence in the press –
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 criminal proceedings and, on the other hand, to the
State’s positive obligations under Article 8 of the
Convention to protect the privacy of the victim. In such cases the
Court has always stressed the contribution made by photos 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). While reporting and commenting on court
proceedings, provided that they do not overstep the bounds set out
above, contributes to their publicity and is thus perfectly consonant
with the requirement under Article 6 § 1 of the Convention
that hearings be public, it is to be noted that the public nature of
court proceedings does not function as a carte blanche relieving the
media of their duty to show due care in communicating information
received in the course of those proceedings (see Eerikäinen
and Others, cited above, § 63).
-
In the case of Egeland and Hanseid, which concerned a fine for
breaching the prohibition to photograph a convicted person without
her consent on the way from the court hearing in which the conviction
was pronounced, the Court found that the portrayal in the press of
the applicant had been particularly intrusive and that the interest
in restricting publication of the photographs had therefore
outweighed those of the press in informing the public on a matter of
public concern (see Egeland and Hanseid v. Norway, no.
34438/04, §§ 61 and 63, 16 April 2009).
- The
Court therefore considers that the competent authorities in the
respondent State should be accorded a wide margin of appreciation in
their balancing of the conflicting interests (see Egeland and
Hanseid, cited above, § 55, and, mutatis mutandis, A.
v. Norway, no. 28070/06, § 66, 9 April 2009).
(b) Application of these principles to the
present case
- In
the present case the first applicant company reported in its
newspaper Kronen Zeitung and the second applicant company in
its online newspaper www.krone.at on the case of C, who had
been severely ill-treated and sexually abused by her father, A, and
her stepmother, B. In February 2005 the trial was held and on 21
February 2005 the Regional Criminal Court convicted A and B of
aggravated sexual abuse of minors, deliberate aggravated bodily harm
and ill-treatment of minors and sentenced both of them to fifteen
years’ imprisonment. The applicant companies published two
articles in their respective media in February 2005, in which
they gave detailed descriptions of the circumstances of the case and
revealed C’s identity by mentioning her first name, the full
names of her father and stepmother, their family relation and by
publishing photographs of A and B. In addition, the second applicant
company also published photos of C herself, including a close-up of
her face. Thereupon C filed a claim for compensation against both
applicant companies on the ground that they had caused her suffering
by revealing her identity as the victim of a criminal offence
(section 7a of the Media Act) and, in her action against the second
applicant company, she also asked for damages on the ground that the
reporting and the pictures of her published had violated her right to
protection of her strictly private life (section 7 of the Media Act).
- The
Regional Criminal Court granted the requests and ordered both
applicant companies to pay compensation. It considered that the
reporting at issue had breached C’s right to respect for her
strictly private life and to remain anonymous, and found that there
existed no predominant public interest in revealing her identity by
giving details of the identity of the accused which allowed her to be
identified. It found that the applicant companies could have informed
the public in a sufficiently detailed manner without revealing the
identity of the accused and thereby that also of the victim, as this
particular information had not been essential for understanding the
case of C or served any other specific purpose such as warning and
protecting the public.
- 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 carried out
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 C’s right to
protection of her identity. 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 articles or photos in the press
contributed to a debate of general interest (see Flinkkilä
and Others, cited above, § 76, and Eerikäinen
and Others, cited above, § 66).
- In
the present case, C was not a public figure, nor does the Court
consider that she has entered the public scene by becoming the victim
of a criminal offence which attracted considerable public attention.
- The
Court considers further that the articles at issue dealt with a
matter of public concern, a crime involving violence against a child
and sexual abuse committed within the family and could well give rise
to a public debate on how the commission of similar crimes could be
prevented. However, given that neither the offenders nor the victim
were public figures or had previously entered the public sphere, it
cannot be said that the knowledge of the identity of these persons
was material for understanding the particulars of the case (see
“Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft
mbH (no. 2) v. Austria (dec.), no. 6274/00, 14 November
2002). In this connection the Court notes that the applicant
companies were not prevented from reporting on all the details
concerning the case of C, only from revealing her identity and
publishing a picture of her from which she could be recognised.
- On
the other hand there is no doubt that the identity of the victim of a
crime deserves particular protection on account of his or her
vulnerable position, all the more so in the instant case as C was a
child at the time of the events and had become the victim of violence
and sexual abuse. In this connection the Court refers to Article 31
of the Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse, which obliges the
Contracting States “to take the necessary legislative or other
measures to protect the rights and interests of victims, by
protecting their ... identity and ... by taking measures in
accordance with international law to prevent the public dissemination
of any information that could lead to their identification. The same
concept of protecting the identity of victims of crime has also been
recognised in various recommendations adopted by the Committee of
Ministers of the Council of Europe (see Recommendations Rec(85)11,
Rec(2001)16 and Rec(2003)13, quoted in §§ 24-26 above) as
well as in the Court’s case-law on Articles 8 and 10 of
the Convention (see Egeland and Hanseid, cited above, §§
59-61, and A. v. Norway, cited above, §§ 71-73).
- The
applicant companies also claimed that in 2003 they had received the
authorisation of D to report on the case in the manner they did
including the publication of photos of C. However, the Court notes
that the Austrian courts examined this issue carefully and, having
heard several witnesses, concluded that at the time of the
publication at issue no valid consent to the applicant companies’
publications had existed as in 2005 D had explicitly revoked her
consent given in 2003. The Court considers that these findings do not
appear unreasonable and in this connection reiterates that the fact
that a person cooperated with the press on previous occasions cannot
serve as an argument for depriving that person of protection against
the publication by the press of photographs revealing his or her
identity (see Egelan and Hanseid, cited above, §
62).
- Lastly,
the Court considers that the interference with the applicant
companies’ right to impart information was proportionate. The
applicant companies have not been subject to fines imposed in
criminal proceedings but ordered to pay compensation for the injury
caused to the person whose identity was revealed by them to the
public. The amounts of compensation, EUR 8,000 as regards the
first applicant company and EUR 12,000 as regards the second
applicant company, relate to two articles published. Even though
substantial, the amounts appear reasonable taking into account the
length of the articles, their contents which, on account of the
details given, constituted a particularly serious interference, the
particular impact it had on C, who, following the detailed reports in
the press on the trial against A and B had a relapse and had to be
re-admitted to hospital on account of her serious psychological
problems, and the particularly wide circulation of the applicant
companies’ media.
- In
sum, the Court finds that, by awarding C compensation for the
disclosure of her identity as the victim of a crime, the respondent
State acted within its margin of appreciation in assessing the need
to protect her privacy. It is satisfied that the restriction on the
applicant companies’ right to freedom of expression resulting
from the Court of Appeal’s judgment of 28 June 2006 was
supported by reasons that were relevant and sufficient, and was
proportionate to the legitimate aims pursued.
- 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 17 January 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
