Privacy- Article 8 – Freedom of expression – Article 10 – Publication of photographs – Criminal proceedings – Copyright -Injunctions
The applicant was the publisher of News Magazine in Austria. On 2 November 2000 the applicant published an article in News about pending investigations into an alleged tax evasion by Mr G, the managing director of a well-known firearms company, and an attempt on his life. The article was accompanied by a picture of Mr G. Mr G brought proceedings under an Austrian Copyright Act against the applicant seeking an injunction to restrain publication of his picture in connection with reports both on the pending tax evasion proceedings against him and in relation to the attempted murder. The Austrian Supreme Court widened an injunction granted by the Vienna Commercial Court to prevent publication of any pictures of the claimant in any reports about the tax evasion proceedings pending against Mr G, albeit that the applicant was free to report the detail of those proceedings and the murder attempt. The applicant claimed that the order was in breach of Article 10.
Whether the restriction on publication of Mr G’s photograph was an infringement of Article 10.
Finding an infringement of Art.10, although the injunction restrained only publication of photographs this was an interference with the right of freedom of expression. Mr G was a business magnate. Although his picture was not widely known, as the owner of one of Austria’s most prestigious companies, he was a public figure. The article reported on a matter of public interest, namely the pending investigations into Mr G’s alleged tax evasion and questioned whether there was a link to the attempt on Mr G’s life. Where a balance had to be struck between the protection of aspects of “private life” under Art.8 and freedom of expression under Art.10, it was necessary to assess the contribution made by the photos or articles published in the press to a debate of general interest. The Court found that there was little scope for an absolute prohibition on the publication of a public person’s picture in an article contributing to a public debate.
The decision is important for its consideration of the difficult tension between privacy and freedom of expression. The Court drew the distinction between the publication of a photograph of Mr G, a public figure, and the earlier decision in Sciacca v Italy, involving a private individual. On the same day as this judgment, the Court of Appeal in McKennitt affirmed the applicability of von Hannover to English Law. Indeed, Eady J carried out the same audit of the contribution made by the publication to a matter of general interest when considering the public interest defence at first instance in McKennitt and more recently in X & Y.