Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD [2012] ECHR 2012 (04 December 2012)Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.
Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that Mr Küchl was engaging in homosexual relations with the seminarians.
One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph.
The article was entitled “Go on!” (Trau dich doch).
The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
Mr Küchl’s efforts to seek redress from the local courts under ordinary defamation law came to nothing, as did his claim invoking the constitutional protection of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photograph and the impugned article. The Regional Court said:
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. …The circumstances leading to [the police investigation] were a subject of public interest and had a direct connection with public life. Mr Küchl, as the head of the seminary, was a public figure in that capacity.Mr Küchl was successful however under Austrian copyright legislation, which prohibits the publication of photographs which violate constitutional interests.
In this case the Vienna Court of Appeal ruled that his legitimate interests had been infringed by the applicants by accusing him of unwanted homosexual advances towards seminarians, and this ruling was upheld by the Supreme court which held that the claimant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10.
They granted the appellant an injunction but denied him compensation.
The newspaper applicants challenged the injunction before the Strasbourg Court, putting forward the usual well-known arguments about the public interest in public figures.
The Court dismissed the application, holding that the sanction was balanced and did not disclose any lack of proportionality under Article 10.
The Court’s reasoning
The Court attached considerable weight to the Austrian courts’ conclusions in the copyright proceedings, that the claimant was not, for these purposes, a “public figure”.
While they noted that he was a high-ranking dignitary of the Roman Catholic Church, they observed that he was not known to the public at large.
…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, Mr Küchl had apparently not contributed to that debate nor had he entered the public scene in any other way before the events which gave rise to the publication of the article at issueThe Court attached particular importance to ’the intrusion into the intimate sphere of the claimant’s private life and the pillorying effect of the publication of the picture in conjunction with the article’, and the fact that sexual relationships between adults fell within the sphere protected by Article 8.
The juxtaposition of ecclesiastical piety and sexual innuendo may make good copy, but the protection of the Convention applies also to representatives of the Church, “even if their conduct is in contradiction with the Church’s position”.