Strasbourg, defamation, press freedom and allegations of sexual misconduct

Last week saw Strasbourg hand down judgments in three linked cases about defamation and freedom of the press – Küchl v Austria 51151/06 – HEJUD [2012] ECHR 2017 (04 December 2012), Rothe v Austria 6490/07 – HEJUD [2012] ECHR 2008 (04 December 2012) and Verlagsgruppe News gmbh and Bobi v Austria 59631/09 – HEJUD [2012] ECHR 2012 (04 December 2012) – with what appear to be slightly-contradictory results.

Until July 2004 Ulrich Küchl and Wolfgang Rothe were principal and deputy principal of the St Pölten Roman Catholic seminary in Austria. In July 2004 a weekly news magazine, Profil, published an article about them stating that that they had had sexual relations with some of the seminarians.

The article was accompanied by a photograph showing Mr Küchl with his left arm around one of the students and his right hand on the man’s crotch: Mr Küchl was shown looking into the camera, apparently aware that he was being photographed. Another photograph showed Mr Rothe about to kiss and embrace another student. Both applicants brought unsuccessful proceedings against Verlagsgruppe News GmbH, the publisher of Profil, requesting compensation for defamation and for the violation of their privacy.

In the first two cases Mr Küchl and Mr Rothe complained that the refusal by the Austrian courts to compensate them under the terms of the Media Act for the publication of the article and the photographs in Profil  violated their right to respect for private and family life under Article 8 ECHR. They also made a number of complaints under Article 6 (fair trial) and Article 13 (effective remedy).

The applicants in the third case, Verlagsgruppe News GmbH, the publisher of Profil, and Emil Bobi, editor-in-chief of the magazine, came at it from the opposite direction, complaining that an injunction upheld by the Austrian Supreme Court on 26 March 2009 prohibiting them from further publishing Mr Küchl’s picture in connection with the allegations about improper goings-on at the seminary had breached their right to freedom of expression under Article 10.

What is odd about the three cases taken together is this. In the first two, the First Section declared Mr Küchl’s and Mr Rothe’s complaints under Article 8 admissible and the remainder inadmissible – but held that there had been no violation of Article 8. The First Section’s reasoning seemed to be based on public interest and justification:

“The domestic courts found that the text of the article published in Profil on 12 June 2004, including the disclosure of the applicant’s identity, fell within the limits of permissible reporting on a matter of general interest. They took extensive evidence, in particular from a number of witnesses, and came to the conclusion that in essence the allegations made in the article were true. The Court sees no reason, let alone any strong reason, to deviate from the domestic courts’ findings, which were based on thoroughly established facts and a detailed assessment of the conflicting interests, in accordance with the criteria established by the Court’s case-law.” [Rothe at 76].

In the third, however, the First Section found that there had been no breach of the newspaper publisher’s rights under Article 10. The Austrian courts had given

“‘relevant and sufficient’ reasons for arriving at the conclusion that – in contrast to the text of the articles, which was not made subject to any restrictions – the future publication of the photograph in the context of specific allegations was to be prohibited, as the claimant’s interest in the protection of the intimate sphere of his private life outweighed the interest of the applicants in the further publication of the picture.” [Verlagsgruppe News gmbh at para 94].

The First Section could see no strong reasons for substituting its own view for that of the domestic courts.

Comment: The only reason why any of this qualifies for mention in a blog about law and religion at all is because of context. Presumably if the allegations had been about casual sex in a Viennese nightclub no-one would have thought it remotely worth reporting: it only qualified as news because it related to a seminary. As the Austrian Regional Court had pointed out in the earlier proceedings,

“Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church” [Verlagsgruppe News gmbh at para 16].

As to the outcome, however, the two sides seem to have played some kind of weird, scrappy score-draw: Verlagsgruppe News gmbh had not had its freedom to impart information under Article 10 unlawfully restricted by the ban on republication of the photograph but, equally, the privacy of Messrs Küchl and Rothe had not been interfered with by the publication in Profil – or, at any rate, not sufficiently to violate Article 8.

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(For more detailed analysis of Verlagsgruppe News gmbh see Rosalind English’s post on UKHRB: Priests are not press meat, says Strasbourg.)

Cite this article as: Frank Cranmer, "Strasbourg, defamation, press freedom and allegations of sexual misconduct" in Law & Religion UK, 10 December 2012, https://lawandreligionuk.com/2012/12/10/strasbourg-defamation-press-freedom-and-allegations-of-sexual-misconduct/

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