GRASSER v. AUSTRIA

 
 
 
 
FIFTH SECTION
DECISION
Application no. 37898/17
Karl-Heinz GRASSER
against Austria
 
The European Court of Human Rights (Fifth Section), sitting on 23 April 2019 as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Mr Karl-Heinz Grasser, is an Austrian national who was born in 1969 and lives in Kitzbühel. He was represented before the Court by Zöchbauer Frauenberger Rechtsanwälte, a law firm based in Vienna.
2.  The facts of the case, as submitted by the applicant, may be summarised as follows.
3.  The applicant was the Minister of Finance of the Republic of Austria from 2000 to 2007. He is well-known in Austria by his initials “KHG”, which are often used by the media as well as the general public. After his term of office, he remained present in the media (mainly the tabloids) because of his marriage to a well-known Austrian entrepreneur, F.S., as well as pending investigations against him by the public prosecutor’s office for his alleged involvement in several corruption affairs. The latter have been, and still are to date, the subject of a number of media reports.
4.  In 2015, two entrepreneurs, K.H. and C.F. published a board game called “KHG – Korrupte haben Geld” (corrupt people have money). It works similarly to the German version of Monopoly called “DKT – Das kaufmännische Talent” (the commercial talent) and includes references to 35 of the “most spectacular cases of corruption – alleged or terminated” (die spektakulärsten Korruptionsfälle – mutmaßlich oder abgeurteilt). The game comes with a booklet providing background information on these 35 cases. One of them directly concerns the applicant, who is one of the most prominent persons featured. In addition, the booklet mentions the applicant’s name several times.
5.  On 22 December 2015 the applicant applied for an injunction against the producers of the board game. He complained that the game violated his right to his name as well as his personality rights, as the defendants had unlawfully used his name (initials) “KHG” for commercial purposes and affiliated it with corruption, thereby damaging his reputation.
6.  The defendants argued that the game was to be understood as satire, and that they risked the consequences of the use of the applicant’s initials to that end. In addition, given that investigations into the applicant on grounds of alleged corruption had been pending many years before the game was brought out, the connection between “KHG” and corruption had long been made and they had merely quoted this already existing link. The defendants explained that the aim of the board game was to make people reflect upon the problem of corruption. Moreover, they pointed out that they never used the initials “KHG” in isolation, but always in conjunction with the subtitle of the game, Korrupte haben Geld.
7.  On 31 May 2016 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen; hereinafter “the Civil Court”) dismissed the application for an injunction. It noted that the defendants had created the game in order to raise awareness of the problem of corruption, through satirical and humorous means. It reiterated that the applicant, the former Minister of Finance, had at times been massively present in the daily newspapers as well as in the tabloids and was often referred to by his initials “KHG”. After his time in Government, the public prosecutor’s office started to investigate him on the grounds of several alleged corruption affairs, which is why he was still talked about in the media.
8.  The Civil Court conceded that the abbreviation “KHG” indeed pointed to the applicant, but noted that it was also an abbreviation for other companies and associations. It noted that the defendants never used the initials “KHG” in isolation, but always in conjunction with the subtitle of the game, Korrupte haben Geld. However, even assuming that “KHG” was a distinct abbreviation of the applicant’s name and hence protected under the Civil Code (Allgemeines Bürgerliches Gesetzbuch) this was irrelevant, as the main question in the required balancing of interests was the factual reason for quoting this name. The Civil Court found that the applicant was an “absolute person of contemporary history” (absolute Person der Zeitgeschichte), which is why it was permissible to name him in connection with an ongoing investigation based on a reasonable suspicion of corruption, if it is mentioned at the same time that there has not yet been a final judgment. It found that the applicant’s personality rights had to be balanced with the defendants’ right to artistic expression in the form of satire, which the game constituted. Satirical expression had to be stripped to its essence in order to determine whether it remained within the permissible limits of freedom of expression. In the instant case, the essence was that the game portrayed the applicant merely as one person among others in connection with 35 corruption cases of recent years which, given his status as a person of contemporary history, the court considered a permissible interference with his personality rights.
9.  On 17 August 2016 the Vienna Court of Appeal (Oberlandesgericht; hereinafter “the Court of Appeal”) dismissed the applicant’s appeal and essentially confirmed the Civil Court’s findings. It reiterated that KHG had never been used in isolation, adding that even if the recipients understood KHG as an allusion to the applicant, this was a side effect and was outweighed by the public interest in making creative use of the German language. Finding otherwise would mean that the applicant could monopolise the three letters irrespective of their context, which would constitute an unreasonable limitation on communication.
10.  On 25 October 2016 the Supreme Court (Oberster Gerichtshof), in a reasoned decision, declared the applicant’s request for revision of the Court of Appeal’s judgment inadmissible. It reiterated that satire was a recognised form of artistic expression and social commentary, which is why interferences with this right had to be examined with the utmost attention. Turning to the case at hand, the Supreme Court found that the lower courts had comprehensively balanced the competing interests of the applicant’s right to respect for his private life on the one hand, and the freedom of the arts on the other hand, taking into account the criminal investigations pending for alleged corruption against the well-known applicant. It concluded that the balancing exercise had been in line with its own, as well as the Court’s, case-law relating to Article 8 of the Convention.
COMPLAINTS
The applicant complained under Article 8 of the Convention that the Austrian courts had failed to protect his right to his name as well as reputation by dismissing his application for an injunction against the board game publishers. In particular, he complained about the outcome of the balancing exercise between his personality rights under Article 8 and the publishers’ rights under Article 10 of the Convention.
THE LAW
11.  The applicant’s complaints concern an alleged interference with his right to his name and his reputation, as guaranteed by Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
12.  The relevant principles in the Court’s case-law have been summarised in the cases of Haupt v. Austria (dec.) (no. 55537/10, §§ 28-34, 2 May 2017), Ernst August von Hannover v. Germany (no. 53649/09, §§ 34-35, 19 February 2015) and Bohlen v. Germany (no. 53495/09, §§ 45‑49, 19 February 2015).
13.  In relation to criticism of politicians in the form of satire, the relevant principles can be found in the case of Eon v. France (no. 26118/10, §§ 59-60, 14 March 2013), and Bohlen (cited above, § 50, with further references).
14.  The Court observes that the applicant did not complain of any State action, but rather of the State’s failure to protect him against the use of his initials without his consent. While the makers of the game certainly chose the applicant’s initials on purpose in order to create publicity for their project, this in itself does not amount to a violation of the applicant’s personality rights under Article 8 of the Convention. It must rather be determined whether a fair balance has been struck between the competing interests, namely the applicant’s right to respect for his private life from the angle of the State’s positive obligations under Article 8, and the game publishers’ freedom of expression as guaranteed by Article 10 of the Convention.
15.  In the domestic proceedings, it was argued by the defendants that the publication of the board game pursued the aim of informing the greater public of the most important corruption affairs in Austria in recent years and raise awareness of the problem, in the form of a satirical approach to the topic. Satire is a way to criticise and expose vicious human behaviour and ridicule politics in a humorous way, often with the intention of changing them for the better. It is an art form which is – in principle – protected by the freedom of artistic expression. In that context, the Court agrees with the domestic courts that the board game at hand – even if it also pursued a commercial purpose – must be considered as a satire, which for the reasons advanced by the domestic courts did not overstep the permissible limits of freedom of expression (see paragraphs 8 and 10 above). The applicant is a very well-known former politician (see paragraph 3 above), in respect of whom the limits of acceptable criticism are drawn more widely than they are in respect of a private individual; he thus has to display a greater degree of tolerance when it comes to publications which relate to him. The Court notes that the applicant as the former Minister of Finance – an office which obviously requires a high level of integrity in financial matters – has been investigated for allegedly being involved in corruption affairs. It is, therefore, as the Civil Court has convincingly argued (see paragraph 8 above), indeed allowed to inform the public on ongoing investigations for alleged corruption, if it is mentioned at the same time that there has not yet been a final judgment. In addition, the link between the applicant and corruption affairs had already been made long before the game was brought out. Moreover, the game did not exclusively concern the applicant, despite his being undeniably the eponym of the game and being one of the most prominent persons featured in the 35 corruption affairs referenced in the game (see paragraph 4 in fine above). Lastly, the Court emphasizes that the applicant has in no way argued that he was accused of a crime in the game.
16.  The Court reiterates that choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. That margin of appreciation is in principle the same as that available to the States under Article 10 of the Convention in assessing whether and to what extent an interference with freedom of expression as protected by that Article is necessary. The Court has previously found that States have a particularly broad margin of appreciation in the regulation of speech in commercial matters or advertising (see Bohlen, cited above, § 47, with further references). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would therefore require strong reasons to substitute its view for that of the domestic courts (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, with further references). In the instant case, the domestic authorities have duly taken the above factors into account and have struck a fair balance between the competing interests in the present case. The Court sees no reasons, let alone strong reasons, to depart from this assessment.
17.  Consequently, there is no appearance of a violation of Article 8 of the Convention. It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 May 2019.
Milan BlaškoYonko Grozev
Deputy Section RegistrarPresident

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