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19.12.2016

CoE: Relevant, but not sufficient: Austria violates publisher’s rights

Gianna Iacino,

On 25 October 2016, the European Court of Human Rights (ECtHR) decided that the arguments of the Austrian Supreme Court (Oberster Gerichtshof, OGH) for the conviction of a publisher for identifying reporting, are relevant, but not sufficient (Appl. no. 60818/10). Therefore, the conviction of the publisher violates the freedom of expression according to art. 10 of the European Convention on Human Rights (ECHR).

In 2006, the weekly news magazine Profil of the publisher Verlagsgruppe News GmbH published an article on the financial difficulties of the bank Hypo Alpe-Adria due to its huge speculative losses. The article mentioned the treasurer of the bank by name and disclosed that criminal proceedings had been initiated against him due to suspicions of embezzlement. The Financial Market Authority (FMA), which was investigating the financial difficulties of the bank, had filed criminal information regarding the offences committed in relation to the business of the bank.

Due to this reporting, the treasurer brought an action against the publisher for damages based on § 7 a para. 1 of the Austrian Media Law (Österreichisches Mediengesetz, ÖMG). According to § 7 a para. 1 ÖMG a person under suspicion of a criminal act has a claim to compensation for damages due to identifying reporting if the reporting violates the person’s legitimate interests, as long as it is not a person of public interest.

The OGH ordered the publisher to pay compensation for damages to the treasurer in the amount of 3.000 €. According to OGH, in the present case, the interest of anonymity of the treasurer outweighed the information value of publishing the treasurer’s name, because the suspicions against the treasurer had been vague at the moment of the publication of the article. The article had been published only a few days after FMA had filed criminal information, and – as the OGH pointed out – the FMA was not a body, which investigates criminal conduct. The publisher appealed against the judgment to the ECtHR.

The ECtHR decided that the conviction of the publisher according to § 7 a para. 1 ÖMG violates his right to freedom of expression protected by art. 10 ECHR. The reasons given by the OGH for the conviction were relevant, but not sufficient. The interference with the publisher’s right to freedom of expression was prescribed by law (namely by § 7 a para. 1 ÖMG) and served a legitimate aim (namely the right to protection of reputation of the treasurer), but it was not necessary in a democratic society. The ECtHR pointed out that the article contributed to a debate of general interests. The FMA was indeed no body, which investigates criminal conduct; however, it was the main authority, which supervised the bank sector in Austria. Already the filing of criminal information by the FMA was of public interest. The sanction imposed on the publisher by the OGH was neither symbolic nor negligible. The ECtHR concludes that OGH has exceeded the narrow margin of appreciation regarding restrictions on debates of public interest. Thus, there is an infringement of art. 10 ECHR.

Gianna Iacino, LL.M., works at the Institute of European Media Law (EMR), Saarbrücken/Brussels.

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The judgment of the ECtHR of 25 October 2016 (Appl. no.: 60818/10) is available in English language here.



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