The Court (First Section)
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).
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 ....;
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
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
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:
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:
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:
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:
B. The Copyright Act and the Civil Code
Section 78 of the Copyright Act, in so far as relevant, reads as follows:
Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
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).
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:
The Government contested that argument.
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.
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 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, 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).
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).
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:
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
contribution to a debate of general interest
how well known is the person concerned and what is the subject of the report?
prior conduct of the person concerned
method of obtaining the information and its veracity/ circumstances in which the photographs were taken
content, form and consequences of the publication
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.
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
Declares the application admissible;
Holds that there has been no violation of Article 10 of the Convention.
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