EHRM, 25-01-2007, nr. 68354/01

The Government argued that the Austrian courts' injunction did not constitute an interference with the applicant association's rights within the meaning of Article 10 of the Convention. They submitted in that regard that Article 10 did not protect artistic freedom as such but only provided protection to artists who intended to contribute through their work to a public discussion of political or cultural matters. The present reproduction of public figures in ‘group sexual situations’ could, however, hardly be regarded as a statement of opinion contributing to a cultural or political debate.

In the alternative, the Government argued that the interference at issue had been lawful and had served the legitimate aim of protecting morals and the reputation and rights of others. As regards the proportionality of the interference, they argued that since its inauguration, the exhibition at which the painting had been shown had been at the centre of media attention, precisely because of the painting itself. The interest of the media had become even more intense after the painting had been partly damaged, so that after the event in question the part of the painting affected and the fact that it showed Mr Meischberger was known not only to visitors of the exhibition but to the general public. The painting had been displayed in nearly all Austrian newspapers and on television. Accordingly, at least from that date on, Mr Meischberger's personal interests had prevailed over the interests of the applicant association in exhibiting the painting. It was also irrelevant whether Mr Meischberger was a subject of public interest at the time of the events as the painting could by no means be regarded as part of a public discussion of general interest or as relating to Mr Meischberger in his public capacity. Nor could Mr Meischberger be expected to comment in public on the painting since the activities depicted in it could certainly offend the sense of sexual propriety of persons of ordinary sensitivity. The Government lastly pointed out that at the time of the interference the exhibition at issue had already been closed down and that throughout the duration of the exhibition the painting had actually been on display. The applicant association had not intended to exhibit the painting abroad. Furthermore, the prohibition on exhibiting the painting any further concerned only the applicant association as the exhibitor and not the owner of the painting, namely the artist and his manager. Having regard to all these elements, the Government argued that the interference at issue was proportionate within the meaning of paragraph 2 of Article 10 of the Convention.

The applicant association argued that the public exhibition of a painting contributed to a debate between the artist, the exhibitor and the public and was therefore protected under Article 10 of the Convention. It accepted that the impugned interference was prescribed by law, but maintained that the interference had been neither necessary nor proportionate. It submitted that the Government's submissions as regards the protection of morals were irrelevant as in the present case the domestic courts had based their decisions merely on Mr Meischberger's prevailing personal interests as protected under section 78 of the Copyright Act. Mr Meischberger could not, however, claim any personal interest worth protecting as the painting obviously did not state or suggest that the way in which he was portrayed corresponded to his actual behaviour. The painting presented the artist's personal history in an allegorical way and depicted, among several other well-known persons, the painter himself and some of his friends and benefactors. All these persons were depicted engaging in sexual acts, reflecting the painter's conception of the interrelation between power and sexuality. Mr Meischberger had been one of the figures who had characterised the history of the FPÖ party in the past few years, and he had been portrayed with the other three members as an allegory of that party, which had always strongly criticised the painter's work. Furthermore, Mr Meischberger and, in any event, the actions he considered libellous were not recognisable after the painting had been partly damaged. In the applicant association's view, the fact that he had instituted proceedings only after the painting had been partly damaged demonstrated that rather than protecting his personal interests he was aiming to discredit the painter's work.

The applicant association lastly pointed out that the Austrian courts' decisions that the painting violated Mr Meischberger's rights as protected under section 78 of the Copyright Act, and the injunction prohibiting any further exhibition of the painting, concerned not only the applicant association but also the painter himself and any other third person wishing to exhibit the painting and were equivalent to the deletion of the painting from the collective memory. As an example they referred to the 2004 exhibition concerning the work of Otto Mühl at the Vienna Museum for Applied Arts (Museum für Angewandte Kunst), where the painting had not been shown.

he Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, ‘duties and responsibilities’; their scope will depend on his situation and the means he uses (see Müller and Others v. Switzerland, judgment of 24 May 1988, Series A no. 133, p. 22, §§ 33–34, with further references).

In the present case, the Austrian courts forbade the applicant association to exhibit any further the painting ‘Apocalypse’ by Otto Mühl. Such decisions interfered with the applicant association's right to freedom of expression (see, mutatis mutandis, Müller and Others, cited above, p. 19, § 27).

The Court further finds, and this was not disputed before it, that the interference was ‘prescribed by law,’ the impugned courts' decisions having been based on section 78 of the Copyright Act.

As to the question of the legitimate aim pursued, the Court observes that section 78 of the Austrian Copyright Act provides a remedy against publication of a person's picture where this would violate the legitimate interests of the person concerned or, in the event that he or she has died, those of close relatives. Referring to that legislation, the domestic courts prohibited the applicant association from exhibiting the painting at issue any further as they found that it constituted a debasement of Mr Meischberger's public standing. The Court therefore accepts that the impugned measure pursued the legitimate aim of ‘protection of the rights of others’.

The Government further contended that the aim of the interference complained of was to protect public morals.

The Court notes, however, that neither the wording of the above legislation, nor the terms in which the relevant court decisions were phrased, refer to the latter aim. Therefore, the Court cannot accept that the Austrian authorities, when prohibiting the exhibition of the painting at issue, pursued any other objective than the protection of Mr Meischberger's individual rights. Accordingly, the Government's argument that the interference also pursued the legitimate aim of protecting public morals fails.

As regards the necessity of the interference, the Court notes at the outset that the painting, in its original state, depicted Mr Meischberger in a somewhat outrageous manner, namely naked and involved in sexual activities. Mr Meischberger, a former general secretary of the Austrian Freedom Party and a member of parliament at the time of the events, was portrayed in interaction with three other prominent members of his party, amongst them Mr Jörg Haider, who at that time was the party's leader and has in the meantime founded another party.

However, it must be emphasised that the painting used only photos of the heads of the persons concerned, their eyes being hidden under black bars and their bodies being painted in an unrealistic and exaggerated manner. It was common ground in the understanding of the domestic courts at all levels that the painting obviously did not aim to reflect or even to suggest reality; the Government, in their submissions, have not alleged otherwise. The Court finds that such portrayal amounted to a caricature of the persons concerned using satirical elements. It notes that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist's right to such expression must be examined with particular care.

In the present case, the Court considers that the painting could hardly be understood to address details of Mr Meischberger's private life, but rather related to Mr Meischberger's public standing as a politician from the FPÖ. The Court notes that in this capacity Mr Meischberger has to display a wider tolerance in respect of criticism (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42). The Court does not find unreasonable the view taken by the court of first instance that the scene in which Mr Meischberger was portrayed could be understood to constitute some sort of counter-attack against the Austrian Freedom Party, whose members had strongly criticised the painter's work.

Furthermore, the Court would stress that besides Mr Meischberger, the painting showed a series of 33 persons, some of whom were very well known to the Austrian public, who were all presented in the way described above. Besides Jörg Haider and the painter himself, Mother Teresa and the Austrian cardinal Hermann Groer were pictured next to Mr Meischberger. The painting further showed the Austrian bishop Kurt Krenn, the Austrian author Peter Turrini and the director of the Vienna Burgtheater, Claus Peymann. Mr Meischberger, who at the time of the events was an ordinary member of parliament, was certainly one of the less well known amongst all the people appearing on the painting and nowadays, having retired from politics, is hardly remembered by the public at all.

The Court also observes that, even before Mr Meischberger instituted proceedings, the part of the painting showing him had been damaged so that notably the offensive painting of his body was completely covered by red paint. The Court considers that, at the very latest from this incident onwards, Mr Meischberger's portrayal — even assuming that he was still recognisable, a question that elicited contradictory answers from the different Austrian courts — was certainly diminished, if not totally eclipsed, by the portrayal of all the other, mostly more prominent, persons who were still completely visible on the painting.

The Court lastly notes that the Austrian courts' injunction was not limited either in time or in space. It therefore left the applicant association, which directs one of the best-known Austrian galleries specialising in contemporary art, with no possibility of exhibiting the painting irrespective of whether Mr Meischberger was known, or was still known, at the place and time of a potential exhibition in the future.

In sum, having balanced Mr Meischberger's personal interests and taking account of the artistic and satirical nature of his portrayal, as well as the impact of the measure at issue on the applicant association, the Court finds that the Austrian courts' injunction was disproportionate to the aim it pursued and therefore not necessary in a democratic society within the meaning of Article 10 § 2 of the Convention.

Accordingly, there has been a violation of Article 10 of the Convention.

In respect of pecuniary damage, the applicant association claimed ATS 21,778 for the compensation and ATS 144,499.20 for the costs it had been ordered to pay Mr Meischberger in the domestic proceedings. Both sums were inclusive of VAT. It further claimed ATS 24,570, including VAT, in respect of the costs of the publication of extracts of the judgment. It finally claimed reimbursement of a lump sum of EUR 2,200 for supplementary administrative expenses during the domestic proceedings.

In respect of non-pecuniary damage, the applicant association sought EUR 70,000.

The Government claimed that, in the absence of a detailed breakdown, the lump sum claimed for supplementary administrative expenses was incomprehensible and that there was thus no causal link between this sum and the violation found. The claim for non-pecuniary damage was excessive and, in any event, the finding of a violation would offer sufficient redress.

As regards pecuniary damage, the Court finds that there is a direct link between the applicant association's claims concerning the costs it was ordered to pay to Mr Meischberger in the domestic proceedings, the costs of publication of the judgment and the violation of Article 10 found in the instant case. The Court therefore awards the full amount claimed under this head, namely EUR 12,286.74, inclusive of VAT. However, the applicant association's complaint, and, therefore, the proceedings before the Court, concerned only the injunction forbidding it to continue exhibiting the painting. Accordingly, the Court cannot find any causal link between the applicant association's claim in respect of the compensation it was ordered to pay and the violation found. The Court will deal with the claim for reimbursement of supplementary administrative costs incurred during the domestic proceedings under the head of costs and expenses. As regards the claim for non-pecuniary damage, the Court finds that in the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction.

The applicant association claimed reimbursement of its costs in the domestic proceedings in the amount of EUR 12,950.16 and EUR 8,984.04 in respect of the proceedings before the Court. Both amounts included VAT and were calculated on the basis of statutory domestic rates.

The Government argued that these claims were excessive and pointed out that the Court was not bound by domestic scales and practices. Furthermore, the subject of the proceedings before the Court was to a considerable degree identical with that of the proceedings before the national authorities and less preparation had therefore been required.

The Court considers in respect of the domestic proceedings that the court costs for the applicant association's legal representation were actually incurred. Accordingly, it awards the full amount of EUR 12,950.16, including VAT, for the applicant association's domestic costs and expenses. As to the lump sum claimed for supplementary administrative costs (see paragraph 44 above), the Court notes that the applicant association did not submit supporting documents as required by Rule 60 of the Rules of Court. It therefore dismisses the claim as being unsubstantiated.

With regard to the applicant association's costs in the Convention proceedings, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316, p. 83, § 77, and Baskaya and Okçuoglu v. Turkey, nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV). Deciding on an equitable basis and having regard to similar cases, the Court awards the applicant association EUR 3,000, including VAT, under this head. It therefore awards a total of EUR 15,950.16 under the head of costs and expenses.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.