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Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft v Austria (No.3)

Reference Applications Nos. 66298/01 and 15653/02
Court European Court of Human Rights

Judge Bratza (President), Bonello, Pellonpää, Traja, Steiner, Garlicki, Borrego Borrego (Judges), Elens Passos, RegistrarJJ

Date of Judgment 13 Dec 2005


Summary

Human rights – Freedom of expression – Art 10, ECHR – Defamation – Meaning – Criminal offence – Public interest/public figure – Photograph – Injunction


Facts

The applicant published an article that referred to a couple, Mr R and Mrs G, as “Bonnie and Clyde.” Mr R, a member of parliament, had been arrested on suspicion of fraud. It was stated in the article that “no suspicion exists” against Mrs G. Mrs G brought proceedings for defamation, and complained that the applicant’s defamation was in breach of the Criminal Code. The Vienna Court of Appeal found that the article contained an “inherent statement” that Mrs G had participated in crime, and that the applicant had therefore breached the Criminal Code. The applicant was ordered to pay Mrs G compensation, to reimburse her costs and to publish an extract of the judgment. Mrs G then applied for an injunction restraining publication of her picture in connection with the proceedings against Mr R. The Austrian Supreme Court held that she was only entitled to an injunction prohibiting the use of her picture while comparing her with “Bonnie and Clyde” or while connecting her with crime.


Issue

Whether the court’s orders in respect of defamation and the injunction against the applicant infringed the applicant’s rights under Article 10 of the European Convention on Human Rights.


Held

Finding a breach of Article 10 in respect of both the defamation and injunction actions: (1) the fact that the article referred to Mrs G as “Bonnie” was not sufficient to mislead the reader as to her implication in the offences of Mr R. The article’s focus was not on these offences, which were well-known to the public, but rather Mr R’s fleeing from Austria and arrest. The aim of the article was to show, in an ironic way, that the reality of these events was banal. It expressly stated there was no suspicion against Mrs G. “Bonnie” was referred to only with “Clyde”. Accordingly, the only implication was that of a couple on the run. Further, Mrs G, by fleeing with Mr R and giving interviews, had entered the public arena and so had to bear the consequences of her decision and display greater tolerance. (2) The picture at issue did not disclose details of Mrs G’s private life; she had not objected to its taking; and the impugned ‘connected’ text had appeared on a different page.


Comment

The European court applied what to English eyes are basic principles about the determination of meaning: one must always look at the words complained of in their full context, and in the light of facts which are generally known to readers. It is questionable, however, whether English law would require someone in Mrs G’s position to ‘display greater tolerance’ of defamatory factual imputations. It is the decision on the photograph which is of greatest interest. Austrian law prohibits the publication of an image of a person if it would cause injury to their legitimate interests. Here, the court saw no ground for restraining publication of a photograph the taking of which Mrs G had not objected to and which did not disclose any personal details, to illustrate what it found to be a non-defamatory story.


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