EHRM, 07-02-2012, nr. 39954/08

On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines Persönlichkeitsrecht). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004).

According to the Regional Court, the article in question, which mentioned X's name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal's private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X's personality rights prevailed over the public's interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue.

The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X's person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X's previous conviction for a similar offence was such as to increase the public's interest, it was his only previous conviction and, moreover, dated back several years.

The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series.

The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X's name — often without a photo — among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye.

X had, to an extent, sought to attract the public's attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other well-known figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights.

The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court's view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character.

The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court's view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor's professional prospects and his difficulties in his relationships.

Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious (gravierend) interference with X's right to the protection of his personality rights.

The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor's office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor's office could be regarded as a ‘privileged source’ (privilegierte Quelle) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X's right to protection of his personality rights. In the court's opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press.

The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor's office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media.

In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor's office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person's name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person's identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake.

The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor's office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X's name by the public prosecutor's office.

On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect's name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X's case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience.

The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court's opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star.

The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time (längerer Zeitraum). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public's interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X's appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question.

The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public's attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men's toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X's arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view.

Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor's office, the Court of Appeal stated that the applicant company's liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor's office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor's office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice.

On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law.

On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions (Anhörungsrüge). It stated that when balancing the public's interest in being informed about public criminal proceedings against an interference with the defendant's private sphere, the Court of Appeal had taken into account the circumstances of the case and had reached its decision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard.

By a judgment of 5 May 2006, the Regional Court granted X's application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18–30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case.

On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31–35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public's interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose (informationelle Selbstbestimmung).

The applicant company's reliance on the high audience rating of the television series Y. did not, in the Court of Appeal's opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men's toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine.

The Court of Appeal added that whilst the fact that the ‘quality press’ had reported the case might indicate that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude that the interference with X's right to the protection of his personality rights had been lawful.

The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter's judgment of 15 November 2005 (see paragraph 48 below).

On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions.

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004-IV; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV).

The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’ (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Pedersen and Baadsgaard, cited above, § 71).

This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 56, ECHR 2000-I; Dupuis and Others v. France, no. 1914/02 § 35, ECHR 2007-VII; and Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008).

Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Baadsgaard, cited above, § 71). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009).

However, Article 10 § 2 of the Convention states that freedom of expression carries with it ‘duties and responsibilities’, which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the ‘rights of others’. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, ECHR 2007-III).

The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer, cited above, § 35; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). The concept of ‘private life’ is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person's identity, such as gender identification and sexual orientation, name or elements relating to a person's right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008-…). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others, cited above, § 75, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010).

In order for Article 8 to come into play, however, an attack on a person's reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, cited above, § 64). The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions such as, for example, the commission of a criminal offence (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).

When examining the necessity of an interference in a democratic society in the interests of the ‘protection of the reputation or rights of others’, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).

The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard, cited above, § 68).

However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X, and Flinkkilä and Others, cited above, § 70). In exercising its supervisory function, the court's task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).

In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly — paragraph 51 above). Accordingly, the margin of appreciation should in principle be the same in both cases.

Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the court's case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).

Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below.

The Court notes that the articles in question concern the arrest and conviction of the actor X, that is, public judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an interest in being informed — and in being able to inform themselves — about criminal proceedings, whilst strictly observing the presumption of innocence (see News Verlags GmbH & Co. KG, cited above, § 56; Dupuis and Others, cited above, § 37; and Campos Dâmaso, cited above, § 32; see also Recommendation Rec(2003)13 of the Committee of Ministers and in particular principles nos. 1 and 2 appended thereto — paragraph 50 above). That interest will vary in degree, however, as it may evolve during the course of the proceedings — from the time of the arrest — according to a number of different factors, such as the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings.

The Court notes the substantially different conclusions reached by the national courts in assessing how well known X was. In the Regional court's opinion, X was not a figure at the centre of public attention and had not courted the public to a degree that he could be considered to have waived his right to the protection of his personality rights, despite being a well-known actor and frequently appearing on television (see paragraph 23 above). The Court of Appeal, however, found that X was a well-known and very popular figure and had played the part of a police superintendent over a long period of time without himself having become a model law-enforcement officer, which would have justified the public's interest in the question whether in his private life he actually behaved like his character (see paragraphs 33 and 34 above).

The Court considers that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level. It notes in the present case that at the material time X was the main actor in a very popular detective series, in which he played the main character, Superintendent Y. The actor's popularity was mainly due to that television series, of which, when the first article appeared, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Superintendent Y. Accordingly, he was not, as the Regional Court appeared to suggest, a minor actor whose renown, despite a large number of appearances in films (more than 200 — see paragraph 22 above), remained limited. It should also be noted in that connection that the Court of Appeal referred not only to the existence of X's fan clubs, but also to the fact that his admirers could have been encouraged to imitate him by taking drugs, if the offence had not been committed out of public view (see paragraph 32 above).

Furthermore, whilst it can be said that the public does generally make a distinction between an actor and the character he or she plays, there may nonetheless be a close link between the popularity of the actor in question and his or her character where, as in the instant case, the actor is mainly known for that particular role. In the case of X, that role was, moreover, that of a police superintendent, whose mission was law enforcement and crime prevention. That fact was such as to increase the public's interest in being informed of X's arrest for a criminal offence. Having regard to those factors and to the terms employed by the domestic courts in assessing the degree to which X was known to the public, the Court considers that he was sufficiently well known to qualify as a public figure. That consideration thus reinforces the public's interest in being informed of X's arrest and of the criminal proceedings against him.

With regard to the subject of the articles, the domestic courts found that the offence committed by X was not a petty offence as cocaine was a hard drug. The offence was nevertheless of medium, or even minor, seriousness, owing both to the small quantity of drugs in X's possession — which, moreover, were for his own personal consumption — and to the high number of offences of that type and related criminal proceedings. The domestic courts did not attach much importance to the fact that X had already been convicted of a similar offence, pointing out that this had been his only previous offence and, moreover, had been committed some years previously. They concluded that the applicant company's interest in publishing the articles in question was solely due to the fact that X had committed an offence which, if it had been committed by a person unknown to the public, would probably never have been reported on (see paragraph 20 above).

The Court can broadly agree with that assessment. It would observe, however, that X was arrested in public, in a tent at the beer festival in Munich. In the Court of Appeal's opinion, that fact was a matter of important public interest in this case, even if that interest did not extend to the description and characterisation of the offence in question as it had been committed out of public view.

Another factor is X's prior conduct vis-à-vis the media. He had himself revealed details about his private life in a number of interviews (see paragraph 25 above). In the court's view, he had therefore actively sought the limelight, so that, having regard to the degree to which he was known to the public, his ‘legitimate expectation’ that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette Filipacchi Associés (ICI PARIS), cited above, § 53, and, by converse implication, Eerikäinen and Others, cited above, § 66).

With regard to the method of obtaining the published information, the applicant company submitted that it had reported on X's arrest only after the disclosure, by the prosecuting authorities, of the facts and of the identity of the accused. It also asserted that all the information that it had published had already been made public, particularly during a press conference and in a press release issued by the public prosecutor's office (see paragraph 69 above). The Government denied that any such press conference had been held by the public prosecutor's office and submitted that it was not until after the applicant company had published the first article that the prosecutor W. had confirmed to other media the facts related by the applicant company.

The Court observes that it cannot be determined from the documents in its possession whether or not the applicant company's assertions that a press conference had been held and a press release issued prior to publication of the first article are substantiated. On the contrary, following a question put by the Court at the hearing the assertions in question turned out to be unfounded. The Court finds the attitude of the applicant company regrettable in this respect.

It can be seen, however, from the court decisions delivered in the present case and the observations of the parties to the domestic proceedings that this point was not dealt with before the domestic courts. For the purposes of examination of the present case, the Court will merely observe that the applicant company attached to all its replies in the various domestic proceedings a statement by one of its journalists as to how the information published on 29 September 2004 had been obtained (see paragraphs 11 and 12 above) and that the Government have not contested the truth of that statement. Consequently, whilst the applicant company is not justified in claiming that it had merely published information made public at a press conference held by the Munich public prosecutor's office, the fact remains that the confirmation of the published information, and in particular X's identity, emanated from the police and the prosecutor W., who was, moreover, press officer for the Munich public prosecutor's office at the time.

Consequently, as the first article was based on information provided by the press officer at the Munich public prosecutor's office, it had a sufficient factual basis (see Bladet Tromsø and Stensaas, cited above, § 72; Eerikäinen and Others, cited above, § 64; and Pipi v. Turkey (dec.), no. 4020/03, 15 May 2009). The truth of the information related in both articles was, moreover, not in dispute between the parties to the domestic proceedings, and neither is it in dispute between the parties to the proceedings before the Court (see Karhuvaara and Iltalehti, cited above, § 44).

However, in the opinion of the domestic courts examining the case, the fact that the information had emanated from the Munich public prosecutor's office merely meant that the applicant company could rely on its veracity; it did not dispense it from the duty to balance its interest in publishing the information against X's right to respect for his private life. They found that that balancing exercise could only be undertaken by the press because a public authority was not in a position to know how or in what form the information would be published (see paragraphs 27–30 above).

In the court's opinion, there is nothing to suggest that such a balancing exercise was not undertaken. The fact is, however, that having regard to the nature of the offence committed by X, the degree to which X is well known to the public, the circumstances of his arrest and the veracity of the information in question, the applicant company — having obtained confirmation of that information from the prosecuting authorities themselves — did not have sufficiently strong grounds for believing that it should preserve X's anonymity. In that context, it should also be pointed out that all the information revealed by the applicant company on the day on which the first article appeared was confirmed by the prosecutor W. to other magazines and to television channels. Likewise, when the second article appeared, the facts leading to X's conviction were already known to the public (see, mutatis mutandis, Aleksey Ovchinnikov v. Russia, no. 24061/04, § 49, 16 December 2010). Moreover, the Court of Appeal itself considered that the applicant company's liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor's office had led it to believe that the report was lawful (see paragraph 35 above). In the court's view, it has not therefore been shown that the applicant company acted in bad faith when publishing the articles in question.

The Court observes that the first article merely related X's arrest, the information obtained from W. and the legal assessment of the seriousness of the offence by a legal expert (see paragraph 13 above). The second article only reported the sentence imposed by the court at the end of a public hearing and after X had confessed (see paragraph 15 above). The articles did not therefore reveal details about X's private life, but mainly concerned the circumstances of and events following his arrest (see Flinkkilä and Others, cited above, § 84, and Jokitaipale and Others, cited above, § 72). They contained no disparaging expression or unsubstantiated allegation (see the case-law cited in paragraph 82 above). The fact that the first article contained certain expressions which, to all intents and purposes, were designed to attract the public's attention cannot in itself raise an issue under the court's case-law (see Flinkkilä and Others, cited above, § 74, and Pipi, above-cited decision).

The Court notes, moreover, that the Regional Court imposed an injunction on publication of the photos accompanying the impugned articles and that the applicant company did not challenge that injunction. It therefore considers that the form of the articles in question did not constitute a ground for banning their publication. Furthermore, the Government did not show that publication of the articles had resulted in serious consequences for X.

Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above.