The ever-instructive UK Human Rights Blog (Rosalind English and commenter hp lehofer) reports on an illuminating series of cases, all deriving from one case in Austria. (I should say at once that these were not blasphemy cases along the lines of Otto Preminger Institut v Austria.)
In all three cases, an Austrian news magazine had published reports of police searches at a Catholic seminary at St. Pölten. The police was reported to have searched for child pornography alleged to have been downloaded at the seminary. In connection with these allegations, the news magazine reported that the principal and deputy principal of the seminary had had homosexual relations with some of the seminarians. Some suggestive photographs were also published.
The principal and deputy principal sued before the Austrian courts, requesting damages. Both lost. However, the principal also applied for a judicial injunction against (inter alia) the publication of the photographs. This was granted by the Austrian Supreme Court.
In a strange twist, therefore, both parties of the overall dispute took their cases to Strasbourg. The magazine argued that the injunction had breached Article 10 (freedom of expression), whereas the principal and deputy principal submitted that their rights under Article 8 (privacy) had been violated by the refusal of damages. The cases of Verlagsgruppe News GmbH and Bobi v Austria on the one hand and Küchl v Austria and Rothe v Austria on the other hand therefore effectively pitted the parties from the domestic cases against one another again (even though the cases were technically against Austria, obviously).
In another neat twist, neither side won (except Austria). The Court conducted lengthy balancing exercises and eventually agreed with the Austrian courts. The analysis in the two sets of cases was, unsurprisingly, very nearly identical. After all, the Court was looking at the same conflict of rights and interests, only from two different directions. The Court therefore recalled – as a factor in favour of publication – that the articles and photographs contributed to a debate of general interest, ‘relating to the moral position advocated by an influential religious community and to the question whether Church dignitaries live up to their Church’s proclaimed standards’ (Verlagsgruppe, para 76; Küchl, para 71). The Court further noted that the magazine had printed the principal’s and deputy principal’s comments on the allegations and photographs. As a factor militating against publication, the Court also noted, however, that neither the principal nor the deputy principal appeared to have actively sought the limelight – either at all or in relation to the Church’s well-known position on homosexuality. Somewhat curiously, the Court also noted that unlike the two men, their bishop had done just that (Verlagsgruppe, para 83; Küchl, para 80).
As to a few other factors, the Court distinguished between the publication of the article as such and the publication of the photographs. As to the article alleging homosexual acts, the Court accepted – on its own limited review – that the Austrian courts had, on a ‘thorough and detailed examination of the case’, found the allegations to be true (Küchl, para 84). This, combined with the ‘debate of general interest’ point, meant that the funtionaries’ Article 8 rights had not been violated by the refusal of damages in relation to the article as such. In relation to the photographs, on the other hand, the Court described the case as ‘of a borderline nature’ (Verlagsgruppe, paras 91-2; Küchl, para 94).
In this respect, Messrs Küchl and Rothe failed because the Austrian courts had performed a full review in accordance with Convention case law, and also because they had secured some protection of their rights in the form of the interim injunction (see Küchl, paras 94-5). Likewise, the Verlagsgruppe (publishers) News GmbH failed because of the domestic courts’ full ECHR review, and because the two men had not been particularly well-known or engaged in any public discussion prior to the publications (Verlagsgruppe, paras 83, 94).
Due to its somewhat odd procedural history, these three cases stand as a good example of a conflict of rights under the ECHR, and particularly of the Strasbourg Court’s task in such cases. Both sides can claim a proportionality review, essentially along the same lines. However, the European Court in particular will be limited by the margin of appreciation. Thus it may happen that in a conflict of rights under the ECHR, neither side wins at Strasbourg. In the end, this shows up the domestic courts’ room for (careful) manoeuvre more than it does any substantive points as to the ‘privacy or publicity’ debate.
On a side note, the Court’s comments as to the bishop are somewhat remarkable (Verlagsgruppe, para 83; Küchl, para 80; cf. Rothe, para 64):
‘The domestic courts’ decisions do not contain much information in respect of the applicant’s prior conduct. The Court observes that it may be assumed that he was relatively well known in the St Pölten diocese. However, in contrast to Bishop Krenn, the bishop of the diocese, who had repeatedly made statements in the media condemning homosexuality in strong terms and provoking equally strong reactions, the applicant had apparently not contributed to that debate nor had he entered the public arena in any other way before the events which gave rise to the publication of the article at issue.’
So if only the magazine had printed unflattering comments about the bishop…