CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 février 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   125 22.2.2007   Press release issued by the Registrar   Three Chamber judgments concerning Austria   The European Court of Human Rights has today notified in writing its Chamber judgments in the cases of: Falter Zeitschriften GmbH v. Austria (application no. 26606/04), Nikowitz and Verlagsgruppe News GmbH v. Austria (no. 5266/03) and Standard Verlagsgesellschaft mbH (No. 2) v. Austria (no. 37464/02).   The Court held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention of Human Rights in the cases of: Falter Zeitschriften GmbH and Nikowitz and Verlagsgruppe News GmbH .   The Court held, by four votes to three, that there had been no violation of Article 10 , in the case of Standard Verlagsgesellschaft mbH (No. 2) .   Under Article 41 (just satisfaction) of the Convention, the Court awarded, in respect of pecuniary damage and costs and expenses: to Falter Zeitschriften GmbH , 4,955.15   euros   (EUR) and EUR   4,094.55; to Nikowitz and Verlagsgruppe News GmbH , EUR   7,058.13 and EUR 4,831.40. (The three judgments are available only in English.)     1.     Principal facts   Falter Zeitschriften GmbH v. Austria (no. 26606/04) The applicant company, Falter Zeitschriften GmbH, owns and publishes the weekly newspaper “Falter”, based in Vienna.   The application concerned an article in the 25   September 2002 issue of the newspaper concerning criminal proceedings brought against officials of the Austrian Freedom Party (FPÖ) for abuse of authority, notably in connection with allegations that police officers had repeatedly leaked data from the central police computer to FPÖ politicians.   The article criticised the way in which the preliminary investigations were handled by the Public Prosecutor’s Office and the proceedings being discontinued at pre-trial stage. It also suggested that Mr Kabas, leader of the Vienna branch of the FPÖ, would have been prosecuted and convicted if proceedings had been brought. The article included evidence against Mr Kabas which the trial judge had found to be credible and Mr Kabas’ testimony that he was innocent.   Mr Kabas brought successful proceedings against the applicant company under section 7b of the Media Act and, on 22 July 2003, it was ordered to publish the judgment and pay him EUR 2,500 in compensation, plus his legal costs. It appealed unsuccessfully.   Nikowitz and Verlagsgruppe News GmbH v. Austria (no. 5266/03) The applicants are Rainer Nikowitz, a journalist and Austrian national, and Verlagsgruppe News GmbH, a limited liability company based in Tulln (Austria), which owns and publishes the weekly magazine “Profil”.   The application concerned a two-page article in the magazine’s 3 September 2001 issue, by Mr Nikowitz, about a road accident in which the well-known Austrian skiing champion, Hermann Maier, injured his leg. The article suggested that one of Mr Maier’s competitors, the Austrian skiing champion, Stefan Eberharter, was pleased about the accident because he would finally be able win something and that he even hoped his competitor would break his other leg too. The article was satirical and was written in response to public hysteria following the accident.   Subsequently Mr Eberharter filed a private prosecution for defamation against Mr Nikowitz and a compensation claim under the Media Act against the applicant company.   On 6 December 2001 Vienna Regional Criminal Court convicted Mr Nikowitz of defamation. Both applicants were ordered to pay a suspended fine of 20,000 Austria schillings (ATS) (approximately EUR 1,450) and costs and the applicant company was also ordered to pay ATS 10,000 in compensation to Mr Eberharter and to publish extracts of the judgment. The applicants appealed unsuccessfully to Vienna Court of Appeal which found that the satirical meaning of the article would be lost on the average reader.   Standard Verlagsgesellschaft mbH (No. 2) v. Austria (no. 37464/02) The applicant, Standard Verlagsgesellschaft mbH, is a limited liability company based in Austria which owns the daily newspaper “Der Standard”.   The application concerned a front page article in the 16 July 1999 issue of “Der Standard”. The article alleged that Mr Haider, then Regional Governor of Carinthia, deliberately misled the Regional Government and breached the Regional Government’s rules of procedure and the Regional Constitution, in the context of the re-appointment of the supervisory board of the Carinthian Electricty Corporation, a partly public owned institution.   The article repeatedly cited an expert as having stated that Mr Haider had deliberately deceived the Regional Government. As a result of proceedings brought by Mr Haider on 29 July 1999, under Section 33 of the Media Act, the applicant company was found to have failed to prove the allegations in question and was ordered to black out the statements in the issues of the newspaper still to be disseminated, to publish the judgment and pay costs. It appealed unsuccessfully.     In December 2001 Mr Haider brought further successful injunction proceedings against the applicant company, under Article 1330 of the Civil Code, following which the company was ordered to retract the statements in question and pay costs. The applicant company contended that it could not be held responsible for shortcomings in the article as it was based on a press release, issued by the Socialist Party, which summarised the expert opinion incorrectly. On 20 November 2002 the applicant company’s appeal was dismissed.         2.     Summary of the judgments [1]   Complaint   The applicants all complained about the courts’ decisions against them, relying on Article 10.   Decision of the Court   Article 10   In all three cases, the Court found that the Austrian courts' decisions interfered with the applicants right to freedom of expression under Article 10, that the interference in each case was prescribed by law and that it pursued the legitimate aim of protecting the reputation and rights of others.   Falter Zeitschriften GmbH The Court noted that the article in question dealt with the criminal proceedings concerning an issue of public and political interest at the time of the events.   The Court considered that the author of the article expressed a value judgment with a sufficient factual basis. The article gave detailed reasons for its findings, providing evidence against Mr Kabas which had been considered credible by the trial judge.   Furthermore, the Court considered that the applicant company's interest in disseminating that information and its opinion based on that, admittedly formulated in a provocative tone, outweighed the interest of Mr Kabas in the circumstances of the case. The article in question included Mr Kabas' testimony claiming his innocence and expressly informed its reader that Mr Kabas was not prosecuted. Moreover, at the time the article was published, investigations against Mr Kabas had already been discontinued so that the article at issue could not possibly influence the outcome of a pending criminal trial.   The Court concluded that the domestic courts restricted the applicant company's freedom of expression while relying on reasons which could not be regarded as sufficient and relevant. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant company's freedom of expression, in violation of Article 10.   Nikowitz and Verlagsgruppe News GmbH The Court noted that the article in question dealt with an incident which had already attracted the attention of the Austrian media and that it was written in an ironic and satirical style and meant as a humorous commentary. Nevertheless, it sought to make a critical contribution to an issue of general interest, namely society’s attitude towards a sports star. It could at most be understood as the author’s value judgment on Mr Eberharter’s character, expressed in the form of a joke, and it remained within the limits of acceptable satirical comment in a democratic society.   It followed that the interference complained of was not “necessary in a democratic society” and that there had therefore been a violation of Article 10.   Standard Verlagsgesellschaft mbH (No.2) The Court observed that the article at issue dealt with the conduct of Mr Haider, a leading politician, concerning a subject of considerable public and political interest. The most careful scrutiny on the part of the Court was called for when the measures taken by the national authorities were capable of discouraging the participation of a daily newspaper in such a debate. In that context the Court further recalled that freedom of the press gave the public an opportunity to learn about and form an opinion on the ideas and attitudes of their political leaders, and also covered possible recourse to a degree of exaggeration, or even provocation.   In terms of whether the article wrongly reproduced the quoted expert opinion, however, the Court noted that the article repeatedly cited an expert as having stated that Mr Haider had deliberately deceived the Regional Government. Noting that the expert opinion at issue did not contain any such allegations, the Court found that the so-called quotations were defamatory, as they amounted to false statements of fact. The Court further found that they constituted serious accusations against Mr Haider.   Having regard to the seriousness of the accusation against Mr Haider, the Court found that the applicant company should have consulted the expert opinion itself in order to comply with the obligation of journalistic diligence, instead of relying without any further research on the Socialist Party's press release.   Having regard to those circumstances, the Court finds that the domestic courts' reasoning was “relevant and sufficient”. Considering further that no penalties were imposed on the applicant company, the Court found the interference was also proportionate; the measures imposed did not prevent the applicant company from discussing the subject matter in any other way.   The interference complained of could therefore be said to have been “necessary in a democratic society” for the protection of the reputation and rights of others and it followed that there had been no violation of Article 10   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] This summary by the Registry does not bind the Court.