EHRM, 07-12-2006, nr. 35841/02

The Government contested the applicant's locus standi within the meaning of Article 34 of the Convention.

Referring to the Convention case-law concerning territorial authorities and to the case of The Holy Monasteries v. Greece (judgment of 9 December 1994, Series A no. 301-A), they argued that the applicant did not qualify as a ‘non-governmental organisation’.

The Government asserted that the applicant was, since 2001, a public law foundation without an owner. Nevertheless, it was under State control: the majority of the members of the Foundation Council, namely 18 out of 35, were appointed by the Federal Government and the Länder. Consequently, the public authorities were in a position to exercise a direct or indirect dominant influence on the applicant company, which therefore qualified as a public undertaking under EU-law (Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings directive).

Furthermore the applicant had a public service mandate defined by law obliging it to provide regularly and permanently one region-wide and two nation-wide radio programmes and two nation-wide television programmes.

It financed its activities from programme fees fixed unilaterally by its organs, namely the Foundation Council and the Audience Council. A company of which the applicant was the sole owner was empowered by law, namely the Collection of Broadcasting Fees Act (Rundfunkgebührengesetz), to collect these fees. Private broadcasters did not have such a system of financing at their disposal.

Finally, the applicant's activities were subject to State supervision in two respects. Firstly, the Federal Communication Panel supervised the applicant company's compliance with its obligations under the 2001 Broadcasting Act. Secondly, the Audit Office (Rechnungshof) controlled its financial management.

The applicant contested the Government's view. Although it was a legal person established by public law and provided a public service, it did not exercise any sovereign powers comparable to that of an administrative authority. Relying on a decision of the Constitutional Court (of 27 June 1975, G 24, 27/74) the applicant company argued that its bodies were neither state organs nor did they exercise governmental powers.

Moreover, the applicant asserted that it was not acting under Government control. It argued that the 2001 Act, apart from transforming it from a public law corporation into a public law foundation, did not affect other aspects of its legal status, in particular its institutional independence. Its organs were established as independent bodies which did not receive any instructions in the exercise of their functions.

The applicant's public service mandate consisted of the duties defined in the Constitutional Broadcasting Act, and was designed to secure the enjoyment of the right to freedom of information by all citizens. Moreover, the Constitutional Broadcasting Act was also applicable to private broadcasting companies with which the applicant company competed on the media market, just like public broadcasting companies in other European countries did.

Finally, if one followed the Government's argument, public law broadcasting companies would not be able to rely on the provisions of the Convention, whereas their private competitors could, which would not be in conformity with the concept of the Convention.

The Court observes that a legal entity ‘claiming to be the victim of a violation by one of the High Contracting Parties of the rights set fourth in the Convention and the Protocols thereto’ may submit an application to it provided that it is a ‘non-governmental organisation’ within the meaning of Article 34 of the Convention. The Government's line of argument was that the ORF was a governmental rather than a non-governmental organisation.

In its Radio France and Others v. France decision (no. 53984/00, ECHR 2003-X (extracts)), the Court summarised the Convention case-law relating to the question whether territorial authorities and other public law entities qualified as ‘governmental organisations’:

The Court notes at the outset that the parties' submissions refer to the legal situation as described in the 2001 Act on the Austrian Broadcasting, which had entered into force on 1 January 2002 before the final decision in the present case was given and the application lodged. It follows that the question of the ORF's locus standi is to be assessed in the light of the provisions contained in the 2001 Act.

Applying the criteria set out in the Radio France decision (cited above) to the present case, the Court observes that the applicant undisputedly does not exercise governmental powers. It provides a public service and it therefore remains to be examined whether it does so under government control.

The Court observes that the basic rules for broadcasting in Austria are laid down by the 1974 Constitutional Law concerning the Safeguarding of the Independence of Broadcasting, which stipulates that any law governing broadcasting has to contain provisions to ensure the objectivity and independence of reporting. The applicant which, since 1974, was a public law corporation was transformed into a public law foundation without an owner by the 2001 Act. Its capital, though stemming from public means, is therefore no longer held by the State. The applicant finances its activities from programme fees which it can fix itself. Its mandate is set out in the 2001 Act as are the rules relating to the establishment of its organs, namely the Foundation Council, the Director General, the Audience Council and the Auditing Commission.

The Foundation Council monitors the applicant's management and appoints the Director General for a period of five years. The latter is responsible for running of the applicant's activities and can only be removed by the Foundation Council acting with a two-thirds majority. The Government argued in particular that the public authorities exercise control since the Federal Government and the Länder appoint a majority of the members of the Foundation Council, namely 18 out of 35. However, the Court notes a number of features which are designed to guarantee the ORF's independence. Firstly, its mandate laid down in Section 4 § 1 of the 2001 Act oblige it to observe the requirements of objectivity and diversity of reporting and to preserve its independence inter alia from the State and the parties. Secondly, Section 19 § 2 provides that the members of the Foundation Council are only bound by law in the exercise of their functions and do not receive any instructions. Section 22 § 3 contains the same provision for the Director General. Thirdly, 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 ORF's compliance with the 2001 Act is an independent body consisting of a majority of judges. Having regard to all these elements, the Court is 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 recalls 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 (see Radio France and Others, cited above).

In conclusion, the Court finds that the Austrian legislator has devised a framework which ensures the Austrian Broadcasting's editorial independence and its institutional autonomy. Consequently, the Austrian Broadcasting qualifies as a ‘non-governmental organisation’ within the meaning of Article 34 of the Convention and is therefore entitled to lodge an application.

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant, while conceding that the interference at issue had a legal basis and served a legitimate aim, contested its necessity. It argued in particular that the prohibition to publish Mr S.'s picture in the context of any reports about his conviction under the Prohibition Act limited its choice of the form and means of imparting information, while other media remained free to publish Mr S.'s picture in the said context.

In the applicant's assertion the Austrian courts had failed to duly weigh the competing interests, since they prohibited the publication of Mr S.'s picture although the accompanying text reported true facts, namely S.'s conviction under the Prohibition Act and his release from prison. Moreover, the news item at issue reported on a subject of great public interest which the applicant, given its broadcasting mandate, was obliged to cover, namely the release on parole of Mr K., a well-known neo-Nazi and leader of VAPO, an organisation which aimed at destroying the democratic order in Austria. There was an equally important public interest in reporting that only a few weeks earlier Mr K.'s deputy, Mr S., had also been released on parole.

The Government's observations also concentrated on the necessity of the interference. They conceded that the news item broadcast by the applicant concerned an issue of public interest, namely the release on parole of Mr K., a leading neo-Nazi. Mr S. was only mentioned as an example of another convict in proceedings against VAPO members. Furthermore, his own release on parole a few weeks earlier was mentioned. The publication of a picture showing him at his trial years back did not add any information of public interest to the report.

Even if Mr S. enjoyed certain notoriety, the courts had rightly found that his interest not to have his picture broadcast many years after his trial prevailed over the applicant's interest to use that picture for purely illustrative purposes. This was all the more so, since Mr S. had been released a few weeks earlier and was thus just beginning to re-integrate into society. He therefore had an important interest not to have his picture shown again in the context of criminal acts the penalty of which he had already served. In any case, the applicant remained free to report about the events at issue without showing Mr S.'s picture. In sum, the interference with the applicant's right to freedom of expression was proportionate.

The present case concerns proceedings under the Copyright Act brought by Mr S. against the applicant in respect of a news item in which his picture was shown. The courts prohibited the applicant from showing Mr S.'s picture in connection with any report stating that he had been convicted under the Prohibition Act one the sentence had been executed or once he had been released on parole. It is undisputed that the courts' judgments in these proceedings constituted an interference with the applicant's right to freedom of expression.

It is not in dispute either that the interference was ‘prescribed by law’ and served a legitimate aim, namely the protection of rights and reputation of others.

The parties' argument concentrated on the necessity of the interference. As regards the general principles relating to freedom of expression of the media in the context of reporting on issues of public interest and the question of assessing the necessity of an interference with that freedom, the Court refers to its established case-law in the cases of Feldek v. Slovakia (no. 29032/95, §§ 72–76, ECHR 2001-VIII) and Scharsach and News Verlagsgesellschaft v. Austria (no. 39394/98, § 30, ECHR 2003-XI).

In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were ‘relevant and sufficient’ and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts' margin of appreciation.

As it did in comparable cases, the Court will take the following elements into account: the position of the applicant, the position of Mr S. who brought the proceedings and the nature and subject matter of the report at issue (see, for instance, Scharsach and News Verlagsgesellschaft, cited above, § 31, and Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001-II).

The applicant is the Austrian public broadcaster. The Court notes that Section 4 § 1 of the 2001 Act obliges it to cover any major new item in the field of politics. In this connection the Court's reiterates its view that 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 (see, among many other authorities, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233-34, § 37).

Mr S. who brought the proceedings at issue, is a well-known member of the neo-Nazi scene in Austria. The Court has already held in a similar case that a person expressing extremist views lays himself open to public scrutiny (see, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000-I). 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.

Turning to the nature and subject matter of the news item broadcast by the applicant, the Court notes that it was a brief report dealing mainly with the release on parole of Mr. K. the leader of VAPO and the neo-Nazi scene in Austria. Mr S. was mentioned as another convicted member of VAPO who had also been released on parole a few weeks earlier. It is not contested by the Government that the news item concerned an issue of public interest. Consequently, it related to a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must 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 (see for instance Thoma v. Luxembourg, no. 38432/97, § 58, ECHR 2001-III, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 25–26, § 35).

The Court notes that the injunction granted by the domestic courts was phrased in broad terms. It 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.

While the court agrees that 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 did not pay any 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.

The latter elements distinguish the present case from a comparable case (Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004) which was declared inadmissible. In that case, the Court found no indication of a violation of Article 10 as regards the prohibition to publish a convict's picture after his release on parole. It had regard to the fact that the picture of B. who had been convicted under the Prohibition Act had been shown in a different context, namely in connection with the investigations in respect of a spectacular series of letter bomb attacks without mentioning that B. had been acquitted of any involvement in these attacks and without mentioning that he had served his sentence under the Prohibition Act and had been released on parole.

Another element which is of relevance is that the other media remained free to publish Mr S.'s picture in the said context. This has not been contested by the Government.

In sum the Court finds that the reasons adduced by the domestic courts were not ‘relevant and sufficient’ to justify the interference. It follows that the interference was not ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention.

There has accordingly been a violation of Article 10 of the Convention.