EHRM, 14-12-2006, nr. 10520/02

Section 78 of the Copyright Act, in so far as relevant, reads as follows:

Starting with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302) the Supreme Court has consistently held that, in the context of reports on criminal proceedings, Section 78 pf the Copyright Act has to be interpreted in the light of Section 7a of the Media Act.

The relevant provisions of the Media Act read as follows:

Section 7a

Section 7b

Pursuant to Article 17 of the Criminal Code (Strafgesetzbuch) lesser indictable offences are all offences punishable with less than three years’ imprisonment.

The applicant contested the necessity of the interference. It asserted that the scope of the preliminary injunction as formulated by the Supreme Court went beyond what was necessary to protect Mr G.'s rights. The lower instances had only prohibited the publication of Mr G.'s picture in the context of the tax evasion proceedings against him if accompanied by any text violating the presumption of innocence. In contrast, the Supreme Court considered that the duty to respect the fiscal secret excluded any public interest in receiving the information at issue. Consequently, it had failed to weigh the conflicting interests. Moreover, the Supreme Court considered it irrelevant whether or not the applicant had obtained the information without inciting tax officials to breach the fiscal secret. Such an interpretation was contrary to the Court's approach in Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I.

Further, the applicant maintained that the claimant was a public figure. He was one of the leading business magnates in Austria. Domestic and international media had reported repeatedly on the success of the claimant's enterprise and the pistol carrying his name. Thus, his name and person had become known to the public at large. As the G.-pistol was widely used by police forces, for instance in Austria, Germany and the United States, the claimant had contacts with politicians and police authorities. Moreover, he entertained close links with the Austrian Freedom Party. It followed that the report about the criminal proceedings for tax evasion against him was of public interest. In short, the prohibition to publish his picture in the context of the tax evasion proceedings against him, irrespective of the accompanying text, was disproportionate.

The Government's submissions also concentrated on the necessity of the interference. They pointed out that Austrian law required a weighing of the interest of the person concerned in the protection of his or her picture and the public interest in its dissemination. The courts had duly carried out this balancing of interests.

In the Government's view, the present case had to be distinguished from News Verlags GmbH & Co. KG v. Austria (no. 31457/96, ECHR 2000-I). In that case the person whose picture had been published had entered the public scene by voicing extremist political views. His picture was published in the context of the trial against him relating to a serious, politically motivated crime, namely participation in a series of letter bomb attacks. In contrast, the claimant in the present case was the managing director of a renowned enterprise who was known in business circles but was not a public figure. The offence he was suspected of, namely tax evasion was classified as a lesser indictable offence and the applicant had obtained the information about these proceedings by a breach of the fiscal secret. In contrast to Fressoz and Roire (cited above) the information at issue was not accessible to the public.

Finally, the Government contended that the interference was also proportionate as the applicant was only prohibited from publishing Mr G.'s picture in the context of reports on the proceedings for tax evasion against him. It was not prevented from reporting about the proceedings themselves. Nor was it prohibited from publishing Mr G's picture in the context of reporting on the attempted murder aimed at him.

The present case is not concerned with a restriction on the contents of reporting but with the prohibition to accompany a report with a picture of the person concerned. The Court recalls that Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed (see, among other authorities, News Verlags GmbH & Co. KG, cited above, § 39 with a reference to Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23–24, § 31). Furthermore, the Court has explicitly recognised that freedom of expression extends to the publication of photos (Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004-VI). Consequently, the preliminary injunction at issue constituted an interference with the applicant company's right to freedom of expression. This is not disputed by the parties.

It is not in dispute either that the interference had a basis in domestic law, namely Section 78 of the Copyrights Act. It served a legitimate aim, namely the protection of the reputation or rights of others.

The parties' arguments concentrated on the necessity of the interference. The Court refers to the general principles relating to the freedom of the press reporting on issues of general interest and the question of assessing the necessity of an interference with that freedom as set out in the summary of its established case-law in Fressoz and Roire (cited above, § 45).

In accordance with this 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.

In the present case, the courts of first and second instance only prohibited the publication of Mr G.'s picture in the context of articles on the criminal investigations concerning tax evasion if the accompanying text violated the presumption of innocence. In contrast, the Supreme Court prohibited the publication of G.'s picture in the context of articles relating to the said investigations in absolute terms.

As it did in comparable cases, the Court will have regard to the following elements: the position of the applicant, the position of Mr G. who brought the proceedings and the nature and subject matter of the article at issue.

The applicant is the owner and publisher of a widely read weekly. In that connection the Court reiterates its constant case-law according to which the press fulfils an essential function in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation of the 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 (see News Verlags GmbH & Co. KG, cited above, § 55).

Mr G. is a business magnate. The domestic courts noted that his picture was not known to the public at large but had only been published in professional journals so far. Even if Mr G. has not sought to appear on the public scene, the Court considers that a business magnate, who owns and manages one of the country's most prestigious enterprises, is by his very position in society a public figure.

Furthermore, the Court observes that the article at issue reported on a matter of public interest, namely on pending investigations on suspicion of tax evasion against Mr G., informing on the recent search of his premises and giving some information on the network of his companies and the alleged practices of tax evasion. It also indicated that there could be a link between this business network and an attempt to murder Mr G. which had taken place the year before. Articles of this kind are capable of contributing to a public debate on the integrity of business leaders, on illegal business practices and the functioning of the justice system in respect of economic offences.

The courts of first and second instance only prohibited the publication of Mr G.'s picture in the context of articles on the criminal investigations concerning tax evasion if the accompanying text violated the presumption of innocence, while the Supreme Court prohibited the publication of Mr G.'s picture in the context of articles relating to these investigations in absolute terms. The Supreme Court relied mainly on two arguments to support its absolute prohibition to publish Mr G.'s picture. Firstly, that tax evasion was not a crime but a lesser indictable offence and secondly that the tax investigations were covered by the fiscal secret.

As to the nature of the offence, Court has already held that there may be good reasons for prohibiting the publication of a suspect's picture in itself depending on the nature of the offence at issue and the particular circumstances of the case (see, News Verlags GmbH & Co. KG, cited above, § 58). Nevertheless, the Court is not convinced by the Supreme Court's approach in the present case. It interpreted Section 78 of the Copyright Act in the light of 7a § 2(2) of the Media Act, concluding that the legitimate interests of a person whose picture had been published in connection with the suspicion of having committed an offence were in any event violated if the offence at stake was merely a lesser indictable offence. The Court notes that, under Austrian law, lesser indictable offences are all criminal offences punishable with up to three years' imprisonment (see paragraph 22 above). This category therefore includes offences of a serious nature, such as in the present case, tax evasion of a very substantial amount.

The Supreme Court's approach excluded any weighing of interests between the public interest to have the information on the proceedings for tax evasion pending against Mr G. accompanied by his picture against the latter's interest to have his identity protected. However, in cases in which the Court has had to balance the protection of a person's picture or other aspects of ‘private life’ within the meaning of Article 8 of the Convention against freedom of expression as guaranteed by Article 10, it has always stressed the contribution made by the photos or articles published in the press to a debate of general interest (Von Hannover, cited above, § 60, with further references). The Court considers that there is little scope for an absolute prohibition to publish a public person's picture in an article contributing to a public debate (see Von Hannover, cited above, §§ 64–66, where the Court emphasised that the photos at issue and the accompanying text did not contribute to any debate of general interest; see also, Sciacca v. Italy, no. 50774/99, §§ 27–28, ECHR 2005…, where the Court noted that the suspect whose picture had been published was not a public figure). The present case, as the Court has already noted above, concerned the publication of a public figure's photo in the context of an article reporting on a matter of public interest, namely the investigations on suspicion of tax evasion against Mr G. which had led to the search of his premises and possible links with a murder attempt committed against him.

The Court will now turn to the Supreme Court's argument relating to the secrecy of the investigations for tax evasion. It notes in particular, that the Supreme Court did not consider it of any relevance whether the applicant had obtained the information about the investigations and the details of the suspicion against Mr G. by inciting tax officials to breach their duty of secrecy or — as it had claimed in the article as well as in the proceedings at issue — by its own journalistic research. However, the question whether the information published which was accompanied by Mr G.'s picture was accessible by other means is relevant in such a context (see, mutatis mutandis, Fressoz et Roire, cited above, § 53 and Dammann v. Switzerland, no. 77551/01, § 53, 25 April 2006).

The Court is not convinced by the argument relying on the secrecy of the investigations on the suspicion of tax evasion. The Court notes — and this is confirmed by the Government — that the applicant remained free to publish reports on the investigations pending against Mr G. despite their secret nature. It remained even free to publish Mr G.'s picture in the context of reporting on the attempted murder of which he had been the victim.

In sum, the Court finds that the reasons adduced by the Supreme Court, though being ‘relevant’ were not ‘sufficient’. The absolute prohibition to publish Mr G.'s picture in the context of reporting on the investigations against him on the suspicion of tax evasion was not proportionate to the legitimate aim pursued. It follows that the interference with the applicant company's right to freedom of expression was not ‘necessary in a democratic society’.

Consequently, there has been a violation of Article 10 of the Convention.

Article 41 of the Convention provides: