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Austria: Court set for judgement on news publisher’s free expression complaint

Next Tuesday, judges will make known their decision in a freedom of expression complaint that pits a Vienna news magazine publisher against Austria’s authorities.

The European Court of Human Rights judgement in the case Verlagsgruppe News GmbH v. Austria (application no. 60818/10) is expected on Tuesday 25 October.

The applicant company, Verlagsgruppe News GmbH, is a limited liability company based in Vienna. It is the owner and publisher of the weekly news magazine Profil.

The case concerns Verlagsgruppe’s civil liability for an article published in Profil, which made allegations of wrongdoing by a banker.

In April 2006, the Financial Market Authority of Austria filed criminal information about offences committed by employees of the Hypo Alpe-Adria Bank, including three members of the executive board and Rauscher, who had been head of the bank’s treasury department.

In substance, the FMA alleged that Rauscher had authorised highly speculative transactions, disregarding instructions of the executive board. The criminal proceedings against Rauscher were ultimately discontinued in 2008.

However, a few days after the FMA had filed its criminal information in April 2006, Verlagsgruppe published an edition of Profil, with a front page containing the words, “Kärntner Hypo-Affäre – Wie viel wusste Haider?” (“Carinthian Hypo affair – How much did Haider know?”).

The magazine contained a nine-page article, detailing the heavy losses sustained by the Hypo Alpe-Adria Bank in 2004, and coverage about who was responsible. The article referred to Rauscher by name, set out the criminal proceedings against him, and suggested that he was responsible for authorising transactions that led to enormous losses for the bank.

In June 2006, Rauscher brought civil proceedings against Verlagsgruppe, for disclosing his identity in breach of section 7a of the Media Act. He claimed that he was not a public figure, that he had acted in accordance with instructions from his superiors, and that his position at the bank had not been such as to justify disclosure of his name. Rauscher maintained that the publication of his name had had negative repercussions on his professional advancement, and had not been justified in the public interest.

Rausher’s claim was dismissed by the court at first instance, which found that the public interest of the publication had outweighed Rauscher’s interest in the protection of his identity (in particular, because almost 50% of the bank was owned by the Land of Carinthia).

However, this decision was overturned by the Vienna Court of Appeal in April 2009. The appellate court found that the article should have confined itself to referring to the head of the bank’s treasury department without mentioning Rauscher’s name, and awarded him EUR 3,000 in compensation.

Verlagsgruppe appealed to the Supreme Court. However, the court dismissed the application in March 2010, finding that the Court of Appeal had correctly weighed the conflicting interests of Rauscher’s right to respect for his private life under Article 8 of the European Convention on Human Rights, and of Verlagsgruppe’s freedom of expression under Article 10 of the European Convention; noting in particular, that at the time of publication, the criminal proceedings against Rauscher had been at a very early stage.

Relying on Article 10 (freedom of expression) of the convention, Verlagsgruppe complains about the decisions of the domestic courts finding in favour of Rauscher, and awarding him both damages and costs.

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