FOURTH SECTION
CASE OF MEDIENGRUPPE ÖSTERREICH GMBH v. AUSTRIA
(Application no. 37713/18)
 
 
JUDGMENT
Art 10 • Freedom of expression • Injunction prohibiting newspaper from publishing image with “convicted neo-Nazi” caption, 20 years after plaintiff’s conviction, since expunged, given his loss of notoriety and no further criminal conduct • Legitimate and significant interest of convicted persons in no longer being confronted with their acts after their release, with a view to their reintegration in society • Supreme Court’s balancing exercise of competing rights in conformity with Court’s case-law criteria as established in Österreichischer Rundfunk
 
STRASBOURG
26 April 2022
 
FINAL
 
26/07/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mediengruppe Österreich GmbH v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Yonko Grozev, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova,
 Jolien Schukking,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 37713/18) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian limited liability company, Mediengruppe Österreich GmbH (“the applicant company”), on 10 July 2018;
the decision to give notice to the Austrian Government (“the Government”) of the complaint concerning Article 10 of the Convention;
the parties’ observations;
Having deliberated in private on 16 November 2021 and 8 March 2022,
Delivers the following judgment, which was adopted on that last‑mentioned date:
INTRODUCTION
1. Within the context of reporting on the social circles of a presidential candidate during the 2016 run-off elections for the office of Federal President of Austria, the applicant company was ordered to refrain from publishing a photograph of the plaintiff in the event that he was called a convicted neo‑Nazi in the accompanying text. His conviction and release from prison dated from many years before the publication of the photo (and accompanying article) in question. The conviction had meanwhile been deleted from his criminal record. The applicant company complained under Article 10 of a violation of its freedom to impart information. THE FACTS
2. The applicant company has its seat in Vienna and was represented by Zöchbauer Frauenberger Rechtsanwälte, a law firm practising in Vienna. 3. The Government were represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant company is the media owner of the daily newspaper Österreich. 6. On 20 July 2016 Österreich reported on a meeting that took place in July 2016 between N.H., then a candidate for the office of Federal President of Austria, and the German daily newspaper Bild. The article stated that during that meeting N.H. had been confronted with a photograph from 1987 showing N.H.’s office manager (Büroleiter), R.S., together with the latter’s brother, H.S., and G.K. at an event identified as being part of the “right-wing scene” (see paragraph 8 below). Statements made by N.H. in reaction to the political past of his office manager were reported. 7. The article in question appeared at a delicate point during the presidential elections in Austria. On 1 July 2016 the Constitutional Court had declared unconstitutional a run-off ballot between N.H., the candidate of the Freedom Party of Austria (Freiheitliche Partei Österreich or “FPÖ”), and A.V.d.B., an independent candidate supported by the Greens (Die Grünen), because of inconsistencies in the counting of the votes (see Constitutional Court judgment no. WI6/2016 of 1 July 2016). The difference in ballots cast for the two candidates amounted to only around 30,000 votes. A second (repeated) run-off ballot was planned for October 2016. Public interest in the two candidates and the election process was immense at the time. 8. The report printed in Österreich, which was illustrated by, inter alia, the above-mentioned photograph, read as follows:
“Interview with Bild
Fuss about [N.]H. in Germany
FP [Freedom Party] candidate’s office manager [appears] in a photo with neo‑Nazi [G.]K. Newspaper Bild caused an unpleasant situation for FPÖ candidate [N.]H. Berlin. N.H., the candidate for Federal President designated by the Freedom Party, had intended to launch a charm offensive by means of [giving] several international interviews. The German newspaper Bild thwarted his plans, though.
[N.]H.’s staff member was present at the interview
Because after the talk, the Bild journalists showed a photograph to [N.]H. depicting convicted neo-Nazis G.K. and H.S. and the latter’s brother, R.S. [H.S. and R.S.] carry batons (Schlagstöcke); [G.]K. gives the radical right-wing Kühnen salute [the “Nazi salute” with extended thumb, index and middle finger]. The matter is piquant (pikant), because today R.S. works as the office manager of N.H. In this capacity, he was also present at the Bild interview, but initially the editors did not notice that at all.
[R.S.] was under 18 and does not have a criminal record
[N.]H. defends himself: ‘Yes, this is [R.S.]. I know the photo. My staff member never did anything wrong. He has never been indicted or convicted. One should not ... R[.S.], how long ago did that take place, 25, 30 years ago? ... use something like that against someone,’ Bild quoted H. as saying. Specifically, [the photograph] is of a meeting in 1987. R.S. was not yet eighteen years old. ‘He does not have a criminal record, was never convicted or reported [to the police]’, says a spokesperson of [N.]H. Rather, [R.]S. was perceived as a ‘follower’ (Mitläufer) of the right-wing scene of that time. N.H. stands by his staff member. He does not only retain him as his office manager. If he is elected Federal President, he also wants to take [R.]S. with him to the Hofburg [the official residence and workplace of the Federal President of Austria] ...”
9. On 22 July 2016 H.S. brought proceedings under section 78 of the Copyright Act (see paragraph 19 below), requesting that the applicant company be prohibited from publishing pictures of him without his consent, in the event that any accompanying text stated that he was a convicted neo‑Nazi and/or made statements of equivalent meaning. In addition, he lodged an application for the issuance of an interim injunction (einstweilige Verfügung) to that effect. Arguing that his conviction of twenty years earlier had long been expunged, he referred to Section 1 (2) of the Criminal Record Deletion Act (Tilgungsgesetz) (see paragraph 23 below) according to which all negative consequences that were connected to that conviction ceased to exist. He did not dispute that he had been convicted in 1995 under the National Socialist Prohibition Act (Verbotsgesetz, “the Prohibition Act”), but he had been released on parole in 1999. He argued that he had reintegrated in society, had founded a family and had taken a regular job. He stated that by spending several years in prison he had paid for his actions, which he had committed during a long-closed phase of his life. He had behaved well ever since, was no longer a public figure and was certainly not a person of interest within the context of the report. He did not even know N.H. Overall, he did not have to accept the statement that he was a convicted neo-Nazi. 10. In its submissions in reply (Klagebeantwortung), the applicant company argued that the criminal proceedings against H.S. had been subject to countless reports by domestic as well as international media in the 1990s. The impugned statement that he was a convicted neo-Nazi was undisputedly true. It furthermore submitted that the plaintiff was one of the most important (former) Austrian neo-Nazis and that the circumstances that had led to his conviction were of historical importance (zeitgeschichtlich bedeutend). Thus, the plaintiff was an “absolute person of contemporary history” (absolute Person der Zeitgeschichte). Furthermore, he had not ceased his respective political activities after his release from prison but was still active in the neo‑Nazi scene. By way of proving that statement, the applicant company quoted a Wikipedia entry about H.S., as well as an article by the Documentation Archive of the Austrian Resistance (Dokumentationsarchiv des Oesterreichischen Widerstandes) according to which the plaintiff, H.S., had attended two public events with G.K. in 2009 – namely an event in Carinthia organised by the Freedom Party of Austria and an event in Leipzig organized by Die Freien Kräfte Leipzig, where both H.S. and G.K. had allegedly given speeches on the Prohibition Act. There was a public interest in knowing about the political circles in which N.H., a presidential candidate, moved, and the impugned report had broached the issue of how the Freedom Party of Austria dealt with right-wing extremism. It was therefore covered by Article 10 of the Convention. 11. H.S. disputed the allegation that he had engaged in any activities in the neo-Nazi scene after his conviction. He argued that the event in Carinthia in 2009 had served the purpose of commemorating war veterans and had been attended by several members of different political parties. As regards the event in Leipzig in the same year, he denied that he had made the comments that had been mentioned in the articles quoted by the applicant company. He had only expressed his personal experiences, at an event organised by the National Democratic Party of Germany (Nationaldemokratische Partei Deutschland or “NPD”) – a recognised political party. 12. By a decision of 10 August 2016, the Vienna Commercial Court (Handelsgericht Wien) in provisional proceedings (Provisorialverfahren) dismissed H.S.’s application for the issuance of an interim injunction. The court essentially argued that the public interest in receiving information on N.H.’s circles including his staff members and the interest of the applicant company in publication outweighed the interest of H.S. in the observance of confidentiality. Moreover, the assertion made in the article in respect of H.S. – namely that he was a convicted neo-Nazi – was true. 13. By a decision of 28 September 2016, the Vienna Court of Appeal (Oberlandesgericht Wien) dismissed an appeal lodged by H.S., essentially endorsing the reasoning of the lower court. 14. However, following a further appeal by H.S., the Supreme Court (Oberster Gerichtshof), in a decision of 30 January 2017 (case no. 6 Ob 216/16g), prohibited the applicant company from “publishing pictures of [H.S.] without his consent, if at the same time he is called a convicted neo-Nazi in the accompanying report, and/or statements of equivalent meaning are made about him there”, and gave the following reasoning:
“The Supreme Court has already approved, in case no. 4 Ob 161/07s [see paragraph 20 below] in respect of another company (which is also a part of the defendant’s media company), the prohibition of the publication of the plaintiff’s [H.S.’s] image without his consent, if the accompanying text describes him as a neo‑Nazi leader and does not state at the same time that he has already served his prison sentence and has behaved well since. In the case at hand, the defendant published an article in its periodical publication, Österreich, on 20 July 2016, in which the claimant [H.S.] is referred to as a ‘convicted neo-Nazi’. A photograph accompanying this article shows the claimant next to the convicted G.K., among other persons. [This court cannot uphold] the lower-instance judgments holding that decision no. 4 Ob 161/07s had been complied with, despite the fact that the plaintiff was described [in the article] as a ‘convicted neo-Nazi’, but at the same time in the accompanying text it was stated that the neo-Nazi meeting depicted in the picture had taken place in 1987. The Supreme Court has clarified that any balancing of interests performed when assessing the legality of photojournalistic coverage concerning a convicted person after [his or her] release on parole must consider, among other things, the connection between the contents of the report [in question] and the [accompanying] picture, as well as the completeness and correctness of the accompanying text (decision no. 4 Ob 169/07t). The contents of the article impugned in this case, however, are not concerned with the claimant, but with his brother and with a candidate for the 2016 election of the Federal President; therefore, there was no objective justification at all for the reference to the previous ‘conviction of the claimant as a neo-Nazi’.”
15. Subsequently, in the main proceedings, the Vienna Commercial Court, by judgment of 21 April 2017, ordered the applicant company “to refrain, from now on, from publishing pictures of [H.S.] without his consent if at the same time he is called a convicted neo-Nazi in the [accompanying] report, and/or statements of equivalent meaning are made about him therein”. At the same time, it dismissed the claim lodged by H.S. for 3,500 euros (EUR), plus interest and costs, by way of compensation for non‑pecuniary damage and ordered the applicant company to reimburse H.S. for the costs of the proceedings. 16. In its reasoning, the court essentially noted, referring to the reasoning of the Supreme Court in the provisional proceedings (see paragraph 14 above), that “a balancing of the (clearly infringed) interests of the claimant against the public interest in the publication that gave rise to the [instant] proceedings ... apparently does not have to be carried out”. The claim lodged by H.S. for compensation for non-pecuniary damage had to be dismissed, given the fact that a “particular injury – that is to say an injury exceeding the usual measure (über das übliche Maß hinausgehende Kränkung) – ... [could not] have occurred for the very reason that the facts in question are indisputably true”. 17. The Vienna Court of Appeal did not grant the related appeal lodged by the applicant company, dismissing it by a judgment of 8 September 2017. It essentially stated that, according to the legal view held by the Supreme Court, there had been no objective justification for the reference to the ‘conviction of the claimant as a neo-Nazi’ in the impugned article because the contents of the article had not concerned the claimant but his brother and a candidate in the 2016 election for the Federal President. Therefore, it was unnecessary to balance the individual interests of the claimant against the public interest in being informed about the political environment in which the office manager of the presidential candidate moved. It ordered the applicant company to reimburse H.S. for the costs of the proceedings. 18. By a decision of 21 December 2017 (case no. 6 Ob 222/17s), the Supreme Court rejected an extraordinary appeal on points of law lodged by the applicant company. It referred to its reasoning in the provisional proceedings (see paragraph 14 above) and added, citing the case of Österreichischer Rundfunk v. Austria (no. 35841/02, 7 December 2006), that there was no temporal connection between the photograph taken in 1987, H.S.’s criminal conviction in 1995, and the applicant company calling him a “convicted neo-Nazi” in the impugned article of 2016. RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE
19. Section 78 of the Copyright Act (Urheberrechtsgesetz) prohibits any public exhibition and/or dissemination of images where the “legitimate interests” of the person in question would be violated. It reads as follows in its relevant parts:
“Protection of one’s image. Section 78 (1) Images of persons shall neither be exhibited publicly, nor disseminated in any other manner by which they are made accessible to the public, where the legitimate interests of the person in question or – in the event that they have died without having authorised or ordered publication – of a close relative would be injured. (2) ...”
20. In assessing whether legitimate interests are violated, not only the picture alone has to be considered, but also the accompanying text in its overall context (see Supreme Court cases no. 4 Ob 169/07t and no. 6 Ob 52/20w). In its decision of 2 October 2007 (case no. 4 Ob 161/07s – see paragraph 14 above) regarding a different article published by the applicant company that had contained a photograph of H.S. with the accompanying caption “neo-Nazi leader”, the Supreme Court held that the picture as such was connected with events of contemporary historical significance. However, the publication of photographs that, together with the accompanying text, recalled crimes committed long ago by the person depicted, would generally disproportionately impair his or her advancement owing to the “pillorying effect” (Prangerwirkung) that would arise therefrom. According to the Supreme Court, this applied all the more if the person concerned (in the instant case, H.S. in 2007), had already served his or her prison sentence and had been socially reintegrated for years, and for those reasons had a legitimate interest in the public not being reminded of his or her past. The Supreme Court found that the lower courts had taken into account the public interest in the publication of the photograph, as they had not generally prohibited it. A legitimate interest in such publication could not, however, justify creating the (incorrect) impression that H.S., who had been fully rehabilitated and was not (any longer) in the public eye, was still active as a "neo-Nazi leader". 21. Starting with its judgment of 23 September 1997 (case no. 4 Ob 184/97) the Supreme Court has consistently held that section 78 of the Copyright Act has to be interpreted in the light of section 7a of the Media Act (Mediengesetz). This provision specifies in which cases the publication of images of victims, suspects or offenders is to be permitted by giving details of the criteria for the balancing of interests to be performed. Accordingly, the Austrian courts have to assess, by way of a first step, whether there is a public interest in publication and which legitimate interests of the person concerned run counter to publication. Subsequently, the legitimate interests of the person concerned must be balanced against the public interest, if any, in the publication of that person’s image. Publication is permitted only if the public interest in publication is the overriding interest. Such (overriding) public interest in publication may exist, for instance, on account of the person’s position in society or of some other connection of that person with public life. 22. Section 7a (2) of the Media Act provides that the legitimate interests of the person concerned will in any event be harmed if the publication of an article or photograph “may disproportionately prejudice the advancement of the person concerned”. 23. Sections 1 to 3 of the Criminal Record Deletion Act (Tilgungsgesetz) read as follows in their relevant parts:
“Expunging of [criminal] convictions
Section 1(1) Save for cases where it is excluded ..., judicial convictions will be expunged (getilgt) ex lege at the expiry of the [applicable] period. (2) With the expunging of a conviction, all negative consequences that are connected by law to that conviction cease to exist, unless they consist of the loss of special rights on the basis of election, award or appointment. (3) ... (4) If a conviction has been expunged [from the criminal record], the convicted person will henceforth be deemed to be judicially innocent (unbescholten), unless this is countered by another, as yet unexpunged conviction. He/she is not obliged to mention the expunged conviction. (5) An expunged conviction may neither be noted in criminal-record information (Strafregisterauskunft) or in criminal-record certificates (Strafregisterbescheinigung) or be made evident in them in any way. ... (6) ... Start of the period of expungement (Tilgungsfrist)
Section 2(1) The period of expungement shall start as soon as all prison sentences or financial penalties (Freiheits- oder Geldstrafen) ... have been executed, are deemed to have been executed, have been suspended (nachgesehen) or may no longer be executed.
... Period of expungement in the case of a single conviction
Section 3(1) If someone has been convicted only once, the period of expungement is ... fifteen years, if he or she has been sentenced to more than three years’ imprisonment ... .
...”
24. Article 113 of the Criminal Code (Strafgesetzbuch) reads as follows:
“Any person who accuses another of an offence for which that person has already served his or her sentence, for which the sentence has been conditionally or unconditionally suspended or waived, or in respect of which sentencing has been temporarily adjourned, in such a way that the [target of the] accusation is identifiable by a third person, is liable to imprisonment for up to three months or a fine not exceeding one hundred and eighty day-fines.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
25. The applicant company complained that the domestic courts’ decisions had violated its right to freedom of expression, as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Admissibility
26. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
27. The applicant company submitted that the public interest in being informed of the nature of the political milieu of the office manager of the presidential candidate N.H. prevailed in the instant case: that milieu included the most prominent Austrian (former) neo-Nazis, G.K., and his former deputy, H.S. The fact that the office manager of the presidential candidate had attended a public protest, wielding a baton, alongside those two subsequently convicted neo-Nazis bore witness to the political environment that surrounded N.H. himself. The applicant company argued that this spoke volumes as to the way in which the Freedom Party of Austria and N.H., who had at the time also been the third president of the Austrian national assembly (Nationalrat), dealt with right-wing extremism. Such information was very valuable and could only be proved by publishing the photograph of 1987 and referring to H.S.’s conviction. 28. Turning to the criteria established in the Court’s case-law regarding the balancing of respective rights under Article 10 and Article 8 of the Convention (see Von Hannover (No. 2) v. Germany [GC], nos. 40660/08 and 60641/08, ECHR 2012), the applicant company argued that the publication of the impugned article and photograph had reported on the criminal conviction of H.S. in a purely factual manner. Furthermore, it had reported truthfully on the fact that the German newspaper Bild had confronted the presidential candidate N.H. with the photo showing R.S. with H.S. and G.K. 29. Next, the applicant company submitted that the statement that H.S. was a convicted neo-Nazi had been true. Referring to the case of Österreichischer Rundfunk v. Austria (no. 35841/02, § 65, 7 December 2006; see also paragraph 53 below), the applicant company stated that the criminal proceedings against him and his conviction for acts punishable under the Prohibition Act on account of his activities as a leading member of the Extra‑Parliamentary organisation Opposition True to the People (Volkstreue Außerparlamentarische Opposition – VAPO) formed an important part of contemporary judicial history. The applicant company did not make any submissions regarding H.S.’s conduct after his conviction in 1995; nor did it dispute the Government’s submission that he had not been convicted since (see paragraphs 35-36 below). 30. As to the consequences of the article in question, the applicant company argued that it had had no repercussions for H.S. He had not asserted during the domestic proceedings that there had been such repercussions, and neither had any been identified by the national courts. 31. The applicant company argued that accusing someone of an expunged criminal act under Article 113 of the Criminal Code (see paragraph 24 above) did not form a basis for the claims under section 78 of the Copyright Act in the sense of sections 7 et seq. of the Media Act. In addition, the Court had already stated in the case of Schwabe v. Austria (28 August 1992, Series A no. 242 B) that a reference to previous criminal convictions was covered by Article 10 of the Convention in respect of politically significant matters. The applicant company did not make any submissions regarding the severity of sanctions imposed on it by the domestic courts. (b)   The Government
32. The Government conceded that the injunction against the applicant company had constituted an interference with its right to freedom of expression. This interference had been based on the law and had pursued a legitimate aim – namely the protection of the rights of others, in particular H.S. They considered that the remaining question was whether the measure had also been necessary in a democratic society. 33. The article published by the applicant company had been about N.H. being confronted by the newspaper Bild with the political background of his office manager, and not with the political background of H.S., the office manager’s brother and the plaintiff in the domestic proceedings giving rise to the present application. H.S. had featured in the report only in so far as he had also been depicted in the photograph dating from 1987 that had been printed. Likewise, the subject of the article published in the German newspaper Bild had been the political background of the office manager of N.H. and N.H.’s position in that regard. This had clearly been indicated by the title of the article: “What is your staff member doing there, Mr [N.]H.?” However, unlike in the article of the applicant company, H.S. had neither been mentioned by name nor referred to as a convicted neo-Nazi in the article of the German newspaper Bild. 34. In the present case, the picture in question had been neither published in the course of reporting on a crime, or of any other reporting concerning H.S. The contents of the applicant company’s article had consisted of the position taken by a presidential candidate, N.H., in respect of his office manager, R.S., who some people considered to have a certain proximity to the “right-wing scene”. Thus, the subject of the article had been of general public interest and had formed part of a political debate. In so far the Austrian courts only had a limited margin of appreciation to interfere with the applicant company’s rights that were protected under Article 10 of the Convention. 35. H.S. had been convicted under the Prohibition Act by a final judgment in 1995 and had served a prison sentence until 1999; he had not thereafter been convicted of any other crime. As ruled by the Supreme Court in its decision of 30 January 2017 (see paragraph 14 above), the reference to the fact that the brother of the office manager of a presidential candidate had been convicted more than twenty years earlier had had no objective connection to the report on the political background of that office manager. There had thus been no objective justification for the reference because that reference had added nothing to a political debate or to a debate regarding the public interest, unlike the reporting on the political orientation of that presidential candidate’s office manager and/or on the presidential candidate’s position in respect of his office manager. 36. The interest of H.S. was quite obvious: the publication of pictures that, together with the accompanying text, recalled offences committed long before, would disproportionately prejudice his advancement, as he had already served his sentence, had been socially integrated for years and had thus had a legitimate interest in ensuring that the public was not reminded of offences that he had once committed. That applied all the more given the fact that the reference in question had been made entirely without any information to the effect that the corresponding conviction by a criminal court had taken place more than twenty years before, the sentence had long since been served and expunged from his criminal record, and he had not been convicted for any crimes since. Any other interpretation would run contrary to the meaning and purpose of expunging a conviction from a person’s criminal record: with few exceptions, all negative consequences arising by virtue of law from a conviction were erased upon expunged. Thereafter, the person concerned was deemed to have no record and was not obligated to disclose such an expunged conviction (see section 1 of the Criminal Record Deletion Act, quoted in paragraph 23 above). 37. The legal system of Austria attached great importance to the reintegration of convicted offenders into society and to their interest in a reformed, positive advancement after serving their sentences. Accusing someone of prior offences that had been served or waived was an offence in itself (see section 113 of the Criminal Code, quoted in paragraph 24 above). 38. The public had already been informed in great detail about the criminal proceedings conducted against H.S., his conviction in 1995 and his release in 1999; all those events had been the subject of extensive (photo)journalistic coverage. Without doubt, the crime committed by H.S. had been grave and of a political nature. More than two decades later, however, it could be assumed that, in the absence of any specific occasion and context, no public interest in information any longer existed to justify publishing a picture with the accompanying text “convicted neo-Nazi”. Moreover, it had to be assumed that the notoriety that H.S. had definitely had at the time of his conviction had decreased quite considerably over more than two decades, during which he had not committed any other offences. 39. That conclusion could not be altered by the argument that the applicant company’s article had been intended to portray the “milieu” in which R.S., the office manager of the presidential candidate, had moved in his past. The public interest in such information could have been satisfied sufficiently by, for instance, simply printing the picture dating from 1987 together with an explanation to the effect that it showed R.S. at a neo-Nazi meeting. The fact that all the people shown in the picture (wearing leather jackets and carrying batons and/or giving the Kühnen salute) were attributable to the neo-Nazi scene must in any case have been obvious to any reader of the article. 40. This was where the case at hand differed significantly from the facts on which the Court’s judgment in the case of Österreichischer Rundfunk (cited above) had been based. At that time, it had been the temporal proximity between the release from prison of the applicant in that case and the report that had been relevant for the Court’s decision. 41. Against this backdrop, the criterion of the completeness and correctness of the text accompanying the photograph, developed by the Court in its case-law, was gaining significance. However, this was precisely the requirement that the newspaper article of the applicant company had not met. There had been no information in the newspaper article to the effect that H.S. had served his sentence long before and had behaved well ever since. In both of its decisions adopted in the case giving rise to this application (see paragraphs 14 and 18 above), the Austrian Supreme Court, referring to the Court’s relevant case-law and making reference to its decision in case no. 4 Ob 161/07s (where it had – for the purpose of presenting the full facts – demanded such additional information from the newspaper publisher in a very similar case), had specifically pointed out that in the article in question, the applicant company had not had regard to that requirement. 42. In the Government’s view, the interference had also been proportionate. The Austrian courts had prohibited the applicant company from publishing images of H.S. only if the text in question at the same time referred to him as a convicted neo-Nazi and/or statements of equivalent meaning would have been made about him. Thus, the domestic decisions had not constituted a general prohibition on any photojournalistic coverage whatsoever or a ban on publishing any pictures of H.S., and they had not provided a fine or prosecution under section 113 of the Criminal Code (see paragraph 24 above); equally, the claim for damages lodged by H.S. against the applicant company had been dismissed (see paragraphs 15-16 above). 43. The Government therefore considered that there had been no violation of Article 10 in the instant case.

Outcome for Article 10: no_violation