Prohibition to a newspaper to publish a photo with the caption “convicted neo-Nazi” 20 years after his conviction! No violation of the right to freedom of expression
JUDGMENT
Mediengruppe Österreich GmbH v. Austria 26.04.2022 (app. no. 37713/18)
SUMMARY
Judicial prohibition on publishing a photo after a period of 20 years from a conviction with an accompanying text. Freedom of expression.
A court ruling banned the applicant newspaper Mediengruppe Österreich GmbH from publishing an accompanying caption with the caption “convicted neo-Nazi” twenty (20) years after the plaintiff was convicted and has since been released, the blow to his reputation and his no further criminal behavior. The interest of the convicts to no longer be held accountable for their actions after their release from prison, in order for their smooth reintegration into society is considered legal and important.
The Supreme Court balanced the conflicting rights between the plaintiff and the applicant in accordance with the criteria of the case law of the Court, as set out in Österreichischer Rundfunk.
The ECtHR did not find any violation of Article 10 of the ECHR.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Mediengruppe Österreich GmbH, is a company based Vienna. It is the publisher of the
daily newspaper Österreich.
The case concerns a court order for Österreich not to publish particular information about an
individual indirectly connected to the campaign of the Freedom Party of Austria candidate in the
run-up to the 2016 presidential election. The newspaper published a photo of the brother of the
candidate’s office manager in a “right-wing scene” and revealed that he was a “convicted neo-Nazi”.
The conviction dated from 20 years before and was spent. Court proceedings ensured. In a final decision the Supreme Court prohibited the applicant company from “publishing pictures of [the office manager’s brother] without his consent, if at the same time
he [was] called a convicted neo-Nazi in the accompanying report …”.
Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, the
applicant company complains about the domestic-court decisions.
THE DECISION OF THE COURT…
Article 10: The domestic courts’ judgments had constituted an interference with the applicant company’s right to freedom of expression which had been “prescribed by law” and served the legitimate aim of the protecting the rights and reputation of others, in particular the right to respect for H.S.’s private life. The main question was thus whether the domestic courts had struck a fair balance between the competing rights at stake having regard to the following applicable criteria.
(a) Contribution to a debate of general interest – The overall subject of the article – namely the fact that N.H. had an office manager around him, H.S.’s brother, who – at least in the past – had contacts with persons who had aimed at destroying the Austrian constitutional order, must be considered as having been of particular public interest at the time of its publication. The article had appeared at a delicate point during the presidential election in 2016 after the Constitutional Court had ruled unconstitutional a run-off ballot between the two candidates. There had also been particular public interest in the election process and the candidates at the time. There was thus little scope under Article 10 § 2 to restrict the applicant company’s right to report on N.H.’s election campaign. Notwithstanding, the impugned article had not alleged that there had been any direct link between N.H. and H.S., or that H.S. had played any role in the election campaign. As found by the domestic courts H.S. had not been the subject of the article. They had thus concluded that publishing his photograph in a report on N.H.’s political milieu with an incomplete accompanying text had not contributed to the debate on the election, despite the particular public interest in the report as such. The Court accepted their conclusion, considering that the applicant company had not – either in the domestic proceedings or in its submissions to the Court – alleged the existence of a direct link between N.H. and H.S.
(b) Degree of notoriety of the person affected and subject of the news report – The Court had already held in similar cases that a person expressing extremist views laid himself open to public scrutiny. This applied all the more to persons who did not only express extremist views but who committed severe crimes such as those under the Prohibition Act that ran counter to the letter and the spirit of the Convention. The Court attached particular importance to the essential function the press fulfilled in a democratic society when reporting on crimes of that kind. As found in its Österreichischer Rundfunk v. Austria judgment, in which H.S had also been the plaintiff in the proceedings giving rise to that case, H.S. had been a “well-known member of the neo-Nazi scene in Austria” and a leading member before his 1995 conviction of the Extra‑Parliamentary organisation Opposition True to the People (VAPO), which aimed at nothing less than destroying the Austrian constitutional order. The proceedings against him had been among the most important ones conducted under the Prohibition Act. Further, at the time of his trial his picture had been widely published. The article in the instant case, however, had been published more than twenty years since H.S.’s conviction and some seventeen years since his release. There was no indication in the parties’ submissions or in the documents submitted that H.S. had sought the limelight after his release. Most importantly, the applicant company had not substantiated that H.S. had still been a person of public interest and notoriety when the photograph was published. There had thus been no reason for the civil courts to carry out a detailed examination of whether he had still been such a person. While the Court supported in general the applicant company’s view that proceedings against neo-Nazis formed an important part of judicial history in Austria, it could not be automatically concluded that H.S.’s notoriety as an individual had remained the same over the years. As regards the subject matter of the report, this did not relate to the criminal proceedings against H.S. or H.S.’s role in the election campaign.
(c) Prior conduct of the person concerned – H.S. had been reintegrated in society after his release and had not had any further criminal convictions. The applicant company had not made any submissions in the civil proceedings regarding H.S.’s conduct after his conviction and had not substantiated its allegation that he had been still active in the right-wing scene. Therefore, the domestic courts had not been obliged, for the purpose of the civil claim, to assess in more detail H.S.’s conduct between his release in 1999 and the publication in 2016.
(d) Method of obtaining the information and its veracity – It was undisputed that the statement made by the applicant company in the text accompanying the photograph that H.S. was a (former) convicted neo-Nazi was true. Incidentally, this had been one of the reasons why the domestic courts had dismissed his claims for damages. The information itself could be considered common knowledge and was easily obtainable through an internet search typing in H.S.’s full name. The text had not been, however, complete in respect of an essential point: it had not informed the reader of the fact that the conviction referred to dated back to 1995, that H.S. had served his sentence and that he had not been convicted of a crime since. The information that the conviction had in the meantime been expunged from his criminal record could have been ascertained by the applicant company by consulting the Criminal Record Deletion Act.
(e) Content, form and consequences of the publication of the article – The content of the article did not concern H.S. Further, H.S. had not alleged in the domestic proceedings that there had been any tangible consequences arising from the publication in question and had thus not been granted the damages claimed.
(f) Severity of the sanction imposed – The restriction imposed on the applicant company had been of a very limited scope. It had not been sanctioned for the report or for the publication of the photograph either in civil or in criminal proceedings. It had not been prevented in general from reporting on H.S. and on the serious crimes once committed by him but had been prohibited from publishing his image if the accompanying text referred to him as a “convicted neo-Nazi”. Further, no compensation had been awarded and no fine imposed. The applicant company only had to reimburse H.S. for the costs of the domestic proceedings.
(g) The lapse of time between the conviction, the release and the publication of the article in question – Unlike in the case of Österreichischer Rundfunk, and as explicitly noted by the Supreme Court in the present case when referring to the Court’s case-law, there had been no temporal connection between H.S.’s 1995 conviction and the article’s publication in 2016. His conviction had already been deleted from his criminal record by then. While the Court did not lose sight of the severe political nature of the crime committed by H.S. before 1995 and of the danger with regard to attacks on democracy if journalists were hindered from reporting on the crimes of neo-Nazis, these considerations had to be weighed against the importance of the reintegration into society of persons who had been released from prison after serving their sentence, and their legitimate and very significant interest after a certain period of time in no longer being confronted with their conviction.
In conclusion, in the specific circumstances of the case the reasons adduced by the domestic courts had been undertaken in conformity Court’s case-law criteria and were “relevant and sufficient” to justify the interference. The Supreme Court had balanced the competing interests at stake and, by doing so, had examined the case on the basis of the criteria that were established by the Court’s own judgment in the case of Österreichischer Rundfunk. Accordingly, the Court saw no strong reasons to substitute the domestic courts’ views with its own and held that the interference had been “necessary in a democratic society”.
Conclusion: no violation (four votes to three)
