In Kurier Zeitungsverlag und Druckerei GmbH v. Austria, the European Court of Human Rights has reiterated its jurisdiction on the balance between the right to respect for private life under article 8 ECHR on the one hand the right to freedom of expression (article 10 ECHR) on the other hand.
The applicant was a publishing house which published the ‘Kurier’, a widespread Austrian daily newspaper.
It had been convicted to pay compensation on the basis of the ‚Austrian media act‘ on account of the reporting of the ‘Kurier’ on a law suit regarding custody of a child and the ensuing enforcement proceedings. The applicant claimed that this conviction amounted to an infringement of its right to freedom of expression.
The Austrian media act foresees that media can be liable to pay compensation in case they discuss or present a person’s strictly private life in public in a way which is apt to compromise this person. Compensation cannot be granted if the publication is true and has a direct connection to public life.
The ‘Kurier’ published three articles on a lawsuit and enforcement proceedings regarding the custody of a child. Following the divorce of a couple with two children, the parents had agreed that the mother should have custody for one child, the father for the other one. Shortly after, the father requested to be granted custody for his other son, Christian, too. The parents agreed that Christian should stay with his father until the request was decided upon. Contrary to the agreement, the father moved to Sweden with both of the children. A Court issued in injunction that Christian be returned to his mother. Later on, Austrian courts decided by final decision that the mother should have custody of Christian.
However, the father failed to comply with the order to hand Christian over to his mother. The authorities undertook without success several attempts to enforce the ruling of the Austrian court. On one occasion, the boy barricaded himself in a school. On another occasion, bailiffs found him in a car in front of his home, but he resisted their attempts to take him with them.
The applicant’s newspaper reported about these events in three articles. Inter alia, the articles criticized the fashion in which the authorities tried to enforce the decision on custody. Journalists received regular information on the state of affairs from Christian’s father. In one article, the ‘Kurier’ showed a picture of Christian crying and in a state of distress while trying to fight off bailiffs in front of his school. The article also stated the boy’s full name and gave details as to his whereabouts.
Represented by his mother, Christian filed a law suit on the basis of the media act. Austrian courts ruled in his favor and ultimately granted compensation in the amount of 9.000 Euros. The applicant claimed that this amounted to a violation of the right to freedom of expression under article 10 ECHR.
The European Court of Human Rights stated that the conviction was an interference with the rights enshrined in article 10 paragraph 1 of the Convention. It went on to scrutinize whether this interference had been justified pursuant to article 10 paragraph 2 ECHR. There was no doubt that the interference had been based on a law and had been imposed to serve a legitimate aim, namely the protection of the reputation of others.
The only issue in question was whether the interference had been necessary in a democratic society. The Court reiterated its long-standing jurisdiction that the term ‘necessary in a democratic society implied that the measure had corresponded to a ‘pressing social need’. It underscored the importance of a free press in a democratic society, but underlined that the right to freedom of expression had to be weighed against the right to respect for private life.
The Court pointed out that it had to be considered if the person who had been subjected to reporting had entered the public scene already. Public figures have to tolerate further going interferences with their right to private life than people who are not in the public arena. In this respect, the Court noted that Christian had not entered the public scene and had not become one on account of proceedings regarding his custody either.
The European Court of Human Rights also stated that publications which contribute to a debate of some public interest enjoy a stronger protection than publications which are merely to satisfy curiosity or to entertain readers. While the Court acknowledged that the publications contributed to a debate on a matter of public concern, namely enforcement proceedings in child custody cases, it stated that the disclosure of Christian’s identity had not been necessary to understand this debate.
It also underpinned that pictures fall into the scope of the right to private life under article 8 ECHR. Since the publication of a photo is a grave interference with article 8 para 1, the margin of appreciation granted to the member states in this area is small.
Finally, the Court held that the amount of compensation Austrian courts had convicted the applicant company to pay was not excessive and not likely to have a chilling effect on the freedom of expression. Consequently, the European Court of Human Rights did not find a violation of the applicant’s rights under article 10 ECHR.