On 19 June 2012 in the cases of Kurier Zeitungsverlag und Druckerei  GmbH (No. 2) v. Austria (Application no. 1593/06) and Krone Verlag GmbH v. Austria (no. 27306/07), the First Section of the European Court of Human Rights In Chamber judgments held that there had been no violation of Article 10 in two cases in which newspapers had revealed the identity of a child and published photographs from which he could be recognised.  The publications were an interference with the child’s private life, and that the compensation of €9,000  and €130,000 was proportionate.

Background

The applicants were the publishers of two daily newspapers, Kronen Zeitung and Kurier.  In January and February 2004, both newspapers published a number of articles about the dispute between a couple over custody of one of their sons.  On 26 January 2004, after various attempts at enforcement had been unsuccessful because the father had gone into hiding with the child, court officers went to his house and tried to seize the child, who cried and resisted. Those scenes were the subject of wide media coverage.  The articles published by the two newspapers revealed the child’s identity, gave details of his family life and were accompanied by photographs showing him in a state of pain and despair.

The child and his mother brought proceedings against the two publishing companies under the Media Act claiming compensation for the intrusion into the child’s private life and for reporting on the victim of a crime in an identifiable manner. The Vienna Regional Criminal Court found against both companies, ordering them to pay compensation and to publish the judgments in the respective newspapers. In September 2005, the court of appeal confirmed the decision as regards the first ground, but rejected it as regards the second ground and reduced the compensation, so that Kurier Zeitungsverlag was to pay €9,000  in respect of three articles and Krone Verlag EUR €130,000 in respect of 13 articles.  The newspapers were ordered to publish the court’s judgment.

Relying on Article 10, the applicant companies complained in particular about the judgments ordering them to pay compensation.

Judgment

It was common ground between the parties in both cases that the judgments ordering the two publishing companies to pay compensation had interfered with their right to freedom of expression. The interference was prescribed by law and had served a legitimate aim, namely “the protection of the reputation or rights of others”.  The issue was whether the interference had been “necessary in a democratic society” for the purpose of Article 10.

The Court noted the importance of assessing “the contribution made by photographs or articles in the press to a debate of general interest” (Kurier, [50]).  However, it went on to note that

“the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation” (loc cit

 Further, “Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution” (loc.cit)

Because the private life of the child was engaged:

“The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing court proceedings and on the manner in which decisions by the courts are enforced and, on the other, to the State’s positive obligations under Article 8 of the Convention to protect the privacy of persons, in particular minors, to whom such proceedings relate. When verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case – freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8 – the Court must balance the public interest in the publication of the information and the need to protect private life” (ibid [51]).

An important factor was whether the person concerned was a “public figure” or had otherwise “entered the public scene” (Kurier, [55]).  The child who had been the subject of the articles in question was not a public figure, nor had he entered the public scene by becoming the victim of a custody dispute between his parents which had attracted considerable public attention (ibid, [56]).

The articles had dealt with a matter of public concern, giving rise to a public debate, namely the appropriate enforcement of custody decisions and whether and to what extent force might or should be used in this context. However, it was not essential for understanding the case to disclose the identity of the child, reveal most intimate details of his life or to publish a picture from which he could be recognised (ibid, [57]).

The Court rejected the argument of the newspapers that it was necessary to publish the picture of the child showing his suffering and despair while clinging to his brother “for the purpose of rousing the public from apathy and attracting their attention“.  It noted

“there is no doubt that the preservation of the most intimate sphere of life of a juvenile who had become the victim of a custody dispute and had not himself stepped into the public sphere deserved particular protection on account of his or her vulnerable position” (ibid, [59])

The Court considered that the interference with the publishing companies’ rights had been proportionate to the aims pursued. The companies had not been fined in criminal proceedings but had been ordered to pay compensation to the child for the injury caused due to interference with his right to respect for strictly private life.  Although the compensation payment imposed on Krone Verlag was exceptionally high it has published 13 articles, repeating details about the child’s private life, his emotional state and his health, and repeatedly publishing photographs of him. This had created a climate of continual harassment. It was significant that the newspaper had a very wide circulation (Krone Verlag, [58] to [60]).  Furthermore, Austrian law had clear guidelines for fixing the amount of compensation and provided adequate safeguards against disproportionate awards, providing in particular that the compensation was not to endanger the economic existence of the newspaper ([61]).

As a result, the applications by both media companies were dismissed.  The judgments of the Austrian domestic courts did not violate Article 10.

Comment

These two cases provide an interesting example of the Court of Human Rights engaging in a “balancing” of the rights under Articles 8 and 10.   Although the subject matter of the publications complained of was undoubtedly of public interest, the Court was unimpressed by the applicants’ arguments that they needed to publish photographs and information about a child to bring the case to wider public attention.   The case could have been reported without identifying the child or publishing a photograph from which he could be identified.   It is noteworthy that, in considering whether the sanctions were proportionate, the Court considered the extent of publication and the element of “harassment” by repeated publication of private information in “Krone Verlag”.  There are three further points which can be noted.

First, in line with recent domestic case law, the Court gave particular attention to the question as to whether the child (or his parents) were “public figures” or had “or had otherwise “entered the public scene”.   It should be noted that the Strasbourg court took a very narrow view of what constitutes a “public figure”. Although the point was straightforward in relation to the child, the court also said that the parents were not “public figures” – despite being involved in a high profile custody dispute they had not “entered the public scene”.  In contrast to the position in the United States, there appears to be no Strasbourg doctrine of the “involuntary public figure”.

Secondly, the Court noted in passing that the fact that a person is a “public figure” will not give the media carte blanche to publish private information.  The Court said that

“the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public” Krone, [56]

In such a case freedom of expression is given a “narrow interpretation”.  Thus even if a person is a “public figure” publication of private information is unlikely to be justified unless they are also involved in “public life” in the narrow sense – for example, politics or big business (on this point see also the recent discussion in Trimingham v Associated Newspapers [2012] EWHC 1296 (QB) [93] to [95]).

Third, in contrast to some recent domestic case law, the Court of Human Rights gave little weight to the “editorial discretion” of the newspapers in this case.  It noted in passing that it is “not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted editorial discretion is not unbounded” Krone, [49]).  The fact that the editors took the view that the photographs and other material were necessary to “ensure the credibility of the story” did not impress the Court.  When it comes to interfering with private life editorial discretion is of little or no relevance.

These cases are an interesting an useful illustration of the “balancing exercise” which the Courts have to engage in when Articles 8 and 10 are both engaged.  They demonstrate that even where public interest stories are concerned, the media must take care not to invade the private sphere, particularly where children are involved.