ECHR Article 10-1
Freedom of expression
Injunction against newspaper restraining further publication of article concerning former head of government: violation
Facts – The applicant was the limited company Axel Springer AG. Among other activities, it was the publisher of the mass-circulation daily newspaper Bild. The German Chancellor Gerhard Schroder, in power since 1998, had lost early parliamentary elections. On 9 December 2005 it was announced that he had been had been appointed chairman of the supervisory board of a German-Russian consortium (NEGP). The contract for construction of a pipeline to be built by this consortium had been signed ten days before the early election.
In its edition of 12 December 2005 Bild published a front-page article with the headline: ‘What does he really earn from the pipeline project? Schroder must reveal his Russian salary’. The former Chancellor applied to the regional court for an injunction prohibiting any further publication of a passage describing the suspicions of Mr Thiele, deputy president of the FDP Liberal Democrat Party, namely that the former Chancellor had resigned from his political functions because he had been offered a lucrative position in the consortium and that the decision to call early elections had been taken with that sole aim, motivated by self-interest. The regional court ordered the newspaper not to re-publish the disputed part of the article. That judgment was upheld by the court of appeal, and a constitutional appeal by the applicant company against the court of appeal’s judgment was dismissed.
Law – Article 10: The disputed passage, which posed the question of whether the former Chancellor had wished to divest himself of his office on account of the position he had been offered in the consortium, was clearly of considerable public interest, given the former Chancellor’s high profile and the subject-matter of the report. Accordingly, freedom of expression had to be interpreted broadly in this case.
The German courts had forbidden the passage in question on the ground that it did not meet the relevant criteria for reporting suspicions.
In the article, the applicant company had reported comments undoubtedly made by Mr Thiele. The questions raised by him were more akin to a value judgment than to factual allegations that were susceptible to proof.
The questions covered by the injunction were made in a political context of general interest, did not allege that the former Chancellor had committed a criminal office and might have had a basis in various facts. Moreover, a head of government had numerous opportunities to publicise his or her political choices and to inform the public of them. Thus, the article had not been required to contain elements in support of the former Chancellor, and his office did not enable him to enjoy significantly greater tolerance than that extended to private citizens.
Further, although the applicant company had published the disputed passage in its newspaper, the questions themselves had been raised by a politician and member of the German Parliament. A newspaper could not be required to verify systematically the merits of every comment made by one politician about another where such comments were made in a context of public political debate. The former Chancellor could have brought judicial proceedings against the person who had made the impugned comments. Accordingly, having regard to the manner in which the newspaper had obtained Mr Thiele’s comments and taking account of the very recent nature of the announcement about the former Chancellor, issued three days prior to the article’s publication, and also of the generally transient nature of news events, there was no indication that the applicant company was not entitled to publish these comments without carrying out other preliminary checks. Equally, it could not be argued that no attempt had been made to contact the former Chancellor or that he had not had an opportunity to react to such questions.
With regard to the manner of publication, the article did not contain expressions concerning the former Chancellor which, by their very nature, could raise an issue under the Court’s case-law.
As to the impact of the publication, the Bild newspaper was published nationally, and had one of the highest circulation figures in Europe.
Lastly, with regard to the severity of the penalty imposed, the applicant company had merely been the subject of a civil-law injunction against further publication of one passage from the article. Nonetheless, this prohibition could have had a chilling effect on the exercise of the applicant company’s freedom of expression.
Regard being had to the foregoing, the applicant company had not exceeded the limits of journalistic freedom in publishing the impugned passage. It had not been established that there existed any pressing social need for placing the protection of the reputation of the former Chancellor above the applicant company’s right to freedom of expression and the general interest in promoting this freedom where issues of public interest were concerned. It followed that the interference in question had not been ‘necessary in a democratic society’.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
48311/10 – Chamber Judgment, [2014] ECHR 745, 48311/10 – Legal Summary, [2014] ECHR 1037
Bailii, Bailii Summary
European Convention on Human Rights 10
Human Rights
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Human Rights, Media
Updated: 22 December 2021; Ref: scu.537548