CEDH · CASELAW;CLIN;ENG — 7 décembre 2006

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Austria - 35841/02 Judgment 7.12.2006 [Section I] Article 10 Article 10-1 Freedom of expression Injunction prohibiting broadcaster from showing the picture of a convicted neo-Nazi once he had been released on parole: violation   Article 34 Non-governmental organisation Public broadcaster qualifies as a “non-governmental organisation” in light of its editorial independence and institutional autonomy: victim status accepted   Facts : In 1999 the applicant (the Austrian Broadcasting Corporation) broadcast information about the release on parole of the head of a neo-Nazi organisation called “Extra-Parliamentary Opposition True to the People” ( Volkstreue Ausserparlamentarische Opposition - VAPO ), Mr   K., who had been sentenced under the National Socialist Prohibition Act. That news item also mentioned his deputy Mr   S., who had previously been convicted under the Act and had been released on parole five weeks earlier. During the broadcast, a picture of the deputy at his trial was shown briefly. The deputy successfully brought proceedings under the Copyright Act and the applicant's rights to publish his picture were restricted. The injunction granted by the domestic courts prohibited the applicant from showing Mr   S.'s picture in connection with any text mentioning his conviction under the Prohibition Act once the sentence has been executed or once he had been released on parole. Law : Article   34 – The Government had argued the applicant was a governmental rather than a non‑governmental organisation and therefore had no standing before the Court. The Court assessed this question in the light of the provisions contained in the 2001 Act on the Austrian Broadcasting and observed that the applicant does not exercise governmental powers. It provides a public service and it therefore remained to be examined whether it does so under government control. Its capital, though stemming from public means, is no longer held by the State. The applicant finances its activities from programme fees which it can fix itself. Its Foundation Council monitors the management and appoints the Director General for a period of five years. The latter is responsible for running the applicant's activities and can only be removed by the Foundation Council acting with a two-thirds majority. The applicant's mandate as laid down in the 2001 Act obliges it to observe the requirements of objectivity and diversity of reporting and to preserve its independence inter alia from the State and the parties. The members of the Foundation Council and the Director General are only bound by law in the exercise of their functions and do not receive any instructions. A number of provisions of the said Act guarantee the editorial and journalistic independence of the applicant's staff members. Finally, the Federal Communication Panel which monitors the applicant'scompliance with the 2001 Act is an independent body consisting of a majority of judges. Having regard to all these elements, the Court was not convinced that the applicant is placed under “government control”. Moreover, the Austrian Broadcasting does not hold a broadcasting monopoly, but operates in a sector open to competition. Private broadcasters can obtain licences under the Private Radio Act and the Private Television Act. As to the Government's argument that the applicant could rely on a method of financing which was not at the disposal of private broadcasters and was subject to the financial control of the Audit Office, the Court recalled that, even where a public broadcaster is largely dependent on public resources for the financing of its activities this it not considered to be a decisive criterion, while the fact that a public broadcaster is placed in a competitive environment is an important factor.   In view of the legislative framework which ensures the applicant's editorial independence and its institutional autonomy, it qualifies as a “non-governmental organisation” within the meaning of Article   34. Article   10 – The applicant being the Austrian public broadcaster, the 2001 Act obliges it to cover any major new item in the field of politics. The press and more generally the media have a duty to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest. Mr   S., who brought the proceedings at issue, is a well-known member of the neo-Nazi scene in Austria and the Court had already held in a similar case that a person expressing extremist views lays himself open to public scrutiny. Moreover, Mr. S. was convicted of crimes under the Prohibition Act in 1995 and was sentenced to a lengthy prison term for being a leading member of VAPO, an organisation aimed at destroying the Austrian constitutional order. In the domestic courts' assessment the proceedings against Mr   S. were among the most important ones under the Prohibition Act. At the time of his trial his picture was widely published. The news item broadcast by the applicant in 1999 was a brief report dealing mainly with the release on parole of Mr. K. Mr   S. was mentioned as another convicted member of VAPO who had also been released on parole a few weeks earlier. The Court had to exercise caution when the measures taken by the national authorities are such as to dissuade the media from taking part in the discussion of matters of public interest.   The injunction granted by the domestic courts was phrased in broad terms.   While there may be good reasons to prohibit the publication of a picture of a convicted person after his release on parole,a number of elements are to be taken into account when weighing the individual's interest not to have his physical appearance disclosed against the public's interest in the publication of his picture. Elements that will be relevant are the degree of notoriety of the person concerned, the lapse of time since the conviction and the release, the nature of the crime, the connection between the contents of the report and the picture shown and the completeness and correctness of the accompanying text. The domestic courts attached great weight to the time-element, in particular to the long lapse of time since Mr   S.'s conviction, but paid no particular attention to the fact that only a few weeks had elapsed since his release. They did not take into account his notoriety and the political nature of the crime of which he had been convicted. Nor did they have regard to other important elements, namely that the facts mentioned in the news items were correct and complete and that the picture shown was related to the content of the report. Another element of relevance was that the other media had remained free to publish Mr   S.'s picture in the said context.   In sum, the reasons adduced by the domestic courts were not “relevant and sufficient” to justify the interference which was not “necessary in a democratic society”. Conclusion : violation (unanimously). Article   41 – EUR 6,711 in compensation for pecuniary damage (i.e. the costs which the courts had ordered the applicant company to reimburse to Mr   S.).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes