Full case report
sterreichischer Rundfunk v Austria
Reference Application No. 35841/02
Court European Court of Human Rights
Judge Rozakis (President), Loucaides, Tulkens, Steiner, Hajiyev, Spielmann, Jebens (Judges) and Nielsen (Section Registrar)
Date of Judgment 7 Dec 2006
Freedom of expression – Article 10 – Public interest – Photographs – Television -Broadcast of photograph of convicted person upon release from prison – Political extremists – Meaning of ‘non-governmental organisation’
The Applicant was the Austrian Broadcasting Corporation (ORF) a national broadcaster governed by statute. In 1999, ORF had broadcast a photograph of S, the deputy head of a neo-Nazi organisation (VAPO), showing him at his trial in 1995 in conjunction with a news item about the release on parole of K (leader of VAPO). In the domestic courts, S had obtained an injunction ordering ORF to refrain from publishing photographs of him without his consent. He relied on s.78 of the Austrian Copyright Act which prohibits publication or dissemination of images of people without consent where their legitimate interests would be injured. ORF complained of interference with its Article 10 rights. There was also an issue as to whether ORF had standing as a ‘non-govermental organisation’ within Article 34 of the Convention. The Court elected to deal with admissibility at the same time as the merits of the application.
(1) Whether ORF as a ‘public law foundation’ governed by statute was under state control and thus not entitled to lodge an application with the ECHR;
(2) Whether the interference was necessary and proportionate to the legitimate aim pursued (it was not in dispute that the interference was ‘prescribed by law’ and served a legitimate aim, namely the protection of rights and reputation of others).
(1) Ruling the application admissible; the Austrian legislation ensured the editorial independence and autonomy of ORF. It qualified as a non-governmental organisation.
(2) Article 10 had been violated. It was agreed that there may be good reasons to prohibit the publication of a photograph of a convicted person after his release on parole. However, a number of elements needed to be weighed against the individual’s interest not to have his physical appearance disclosed. Elements that were relevant were 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; and the completeness and correctness of the accompanying text. The domestic courts had failed to take account of S’s notoriety; the political nature of his crime; that only a few weeks had elapsed since his release; and that the facts in the news report were correct.
Although this case concerns the provisions of Austrian statutes, it is of interest because the court lists specific factors that should be taken into account when balancing the right of a person to prevent publication of his image against the public interest in publication. The Court also again noted that a person expressing extremist views lays himself open to public scrutiny (citing News Verlags v Austria). The ECHR awarded EUR 6,711 as pecuniary damages which at the date of the award equates to £4,533.
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