Chapter 2
PRESS LAW IN AUSTRIA
Walter Berka
INTRODUCTION
The constitutional basis of Austria is the Federal Constitution of 1920 (Bundes-Verfassungsgesetz). The Constitution is guided by the rule of law and based on republican, democratic and federal principles as well as on the strict division of legislative, executive and judicial powers.
The constitutional guarantee of basic rights draws on a tradition that is more than a century old. Most of the basic rights and freedoms were first guaranteed in the Basic Law of 1867, which is now included in the Federal Constitution of 1920. Since 1945, the most important change in the Austrian law concerning human rights was Austria's ratification and incorporation in 1958 of the European Convention on Human Rights (ECHR), followed in 1964 by full incorporation of the Convention into the Constitution. These developments have deeply influenced the legal system's protection of fundamental rights including, in particular, freedom of expression and freedom of the press.[footnote 1]
1. RELEVANT CONSTITUTIONAL PROVISIONS
In Austria, the right to freedom of expression, as well as the right of the press to be free from prior censorship and from any form of licensing, is expressly guaranteed. Article 13 of the Basic Law provides:
Everyone has the right to express his opinion freely, within the limits established by law, in speech, in writing, in print or in pictorial form.
The press may neither be subject to censorship nor to the licence system. Administrative postal prohibitions cannot be extended to apply to printed matter in the country.
This constitutional provision was supplemented after World War I by a resolution of the Provisional National Assembly (Provisorische Nationalversammlung), which has constitutional status as well, affirming the freedom of the press and the prohibition of censorship.
The practical importance of these constitutional rules was rather restricted until a few years ago because the guaranteed freedoms were only rights "within the framework of law". The Constitution gave Parliament the competence to determine the scope and limits of freedom of expression. The only restriction which was binding on Parliament was the prohibition of censorship in advance of publication. Laws which set up procedures for censoring cinema and theatre performances were invalidated by the Constitutional Court.[footnote 2] Other legal restraints, however, remained outside the scope of the constitutional guarantee, even if statutes put unreasonable or excessive restrictions on press freedom.
Over the last few decades, the significance of the constitutional guarantee of freedom of expression has been steadily growing. As already mentioned, this is partly due to the fact that the rights and freedoms of the ECHR have become part of the Austrian Constitution and supplement the old Austrian civil liberties. In addition, the fact that the Constitutional Court has shown an increasingly rights-oriented approach has also accorded more importance to the right to freedom of expression. Finally, the Austrian courts have displayed a growing readiness to follow the relevant case-law of the European Court of Human Rights to meet a common European standard of human rights protection.[footnote 3] Thus, for instance, the decision of the European Court in the frequently cited Lingens case has prompted a change in the law of libel, although some aspects of libel law may still fall short of Article 10's requirements.[footnote 4]
In its present day practice the Constitutional Court applies Article 13 of the 1867 Basic Law and Article 10 of the Convention together and unites the guaranteed freedoms under the notion of "freedom of communication".[footnote 5] The reliance on Article 10 of the Convention has led to an extension of the scope of the guaranteed freedom in more than one respect:
(a) Freedom of communication now includes the right to receive information set forth in Article 10. Journalists may invoke this basic right, for example, if they are prevented from getting information by acts of the police or other public authorities (see Section 14 infra).
(b) Freedom of communication now also includes the freedom to impart information, whereas previously it was restricted to the expression of value judgments and opinions.
(c) The expression of value judgments has received additional protection, so that journalists no longer have to try to establish the truth of their opinions (see Section 10.2 infra.)
(d) Commercial speech is no longer excluded from the constitutional protection (see Section 22 infra).
(e) Most importantly, acts of Parliament restricting freedom of expression or press freedom are no longer sacrosanct but instead are subject to a very meticulous judicial review by the Constitutional Court under Article 10. This includes a necessity-test which inquires whether a restriction upon freedom is necessary in a democratic society. Since the concept of necessity implies the existence of a pressing social need, it also includes the principle of proportionality which has become the main battlefield of judicial review under Article 10. Thus, the Constitutional Court in recent years has invalidated laws that had placed unreasonable limits on the distribution of newspapers or the mailing of printed materials.[footnote 6]
2. DISTRIBUTION OF POWERS BETWEEN CENTRAL AND REGIONAL GOVERNMENT
Austria is a federal parliamentary democracy, comprised of nine Länder (provinces). Laws which affect the press are enacted and executed by the federation; the Länder do not have any relevant competencies in this field.
3. ROLE OF THE COURTS
The Austrian judicial system has three branches: the Verfassungsgerichthof (Constitutional Court) reviews the compatibility of legislative and administrative acts with the Constitution; the Verwaltungsgerichtshof (Administrative Court) examines matters affecting the legality of administration; and the Oberster Gerichtshof (Supreme Court) hears appeals from the judicial courts, both criminal and civil. The judicial courts include local courts, provincial and district courts, and four higher provincial court in Vienna, Graz, Innsbruck and Linz.
The Constitutional Court is the main guardian of constitutional rights. Anyone who feels that his or her basic rights have been infringed by an administrative act may appeal to this court. Furthermore, the Court has the power to declare invalid any statute which is incompatible with the basic rights set forth in the Constitution, including the rights and freedoms set forth in the European Convention. Decisions of the penal and civil courts cannot be appealed to the Constitutional Court; however, these courts can refer a law to the Constitutional Court when they believe that it violates a basic right.
Although the Constitutional Court is the main arbiter of constitutional rights, the other courts no longer hesitate to apply constitutional guarantees in civil or criminal cases. It is a broadly accepted principle that all legal provisions must be interpreted in accordance with the jurisprudence of the Constitutional Court concerning fundamental rights, including the principles of necessity and proportionality. This trend, however, has only emerged within the last decade; previously, the courts considered their only task to be to apply the criminal or civil law without regard to constitutional principles.
Because laws which affect the press are found in criminal as well as civil law, the jurisdiction of both the criminal and civil courts is important. Several provisions of the Media Act (for instance, concerning the right of reply and compensation claims for libel and invasion of privacy), although belonging to civil law in substance, are applied by criminal courts which employ their own specialized "media judges".[footnote 7]
4. STATUS OF INTERNATIONAL HUMAN RIGHTS TREATIES IN NATIONAL LAW
The European Convention on Human Rights, ratified by Austria in 1958, was directly incorporated into Austrian constitutional law in 1964. Everyone is entitled to rely on the Convention's substantive protections, and the courts and administrative authorities must observe its obligations directly. Austria has also accepted the obligation under Article 25 to allow individuals to file applications against Austria with the European Commission of Human Rights.
Austria ratified the International Covenant on Civil and Political Rights (ICCPR) in 1978, and ratified its First Optional Protocol in 1987, thereby granting individuals the right to file complaints against Austria with the UN Human Rights Committee. However, the Covenant has not been incorporated into Austrian constitutional law and is not directly applicable by the courts. Compared to the European Convention, its practical importance is negligible.
5. STATUTORY FRAMEWORK
The most important law concerning the press is the Media Act (Mediengesetz) of 1981.[footnote 8] This law replaced the Austrian Press Act (Pressegesetz) of 1922 and created a much more liberal legal framework for the press.
In principle, the Media Act applies to all the mass media. Thus, some of its provisions affect broadcasting, although there also exists a separate Radio and Television Act.[footnote 9] As concerns the press, several provisions of the Media Act (discussed below) are particularly important: regulatory provisions for printed publications; the right of reply; legal protection of the personality (libel and privacy) which complement the relevant criminal and civil law provisions; special criminal procedural provisions with reference to criminal offences involving the media (called Medieninhaltsdelikte), such as concerning confiscation of publications; protection of the editor's privilege; and protection of sources.
Various other laws, discussed throughout this chapter, also affect the press.
6. REGULATION OF OWNERSHIP
Concentration of ownership in the newspaper market is extraordinarily high. According to an international study, Austria at the beginning of the 1970s already had the second highest concentration of ownership of daily papers among the industrial nations. Since then the process of "newspaper-dying" has continued. Currently, only about a dozen independent dailies are still published. The three papers with the largest circulations account for two thirds of the total market, and the German "WAZ" group owns nearly 50 per cent of the two largest papers published in Vienna.[footnote 10] The media giant - comprising WAZ, the two largest papers published in Vienna, and a number of controlled enterprises -- also owns several periodicals, including Profil and Wochenpresse (in which it has a 50 per cent interest), the two most influential political magazines in Austria, as well as several popular magazines.
Foreign, in particular German, companies hold substantial interests in some papers. For example, the German publisher Springer holds controlling interests in two dailies, Der Standard and Tiroler Tageszeitung, as well as in the News, a new weekly magazine.
The economic health, especially of the smaller newspapers, is precarious. Newspapers owned by political parties, which previously were very important, are steadily diminishing in number owing to financial difficulties.
The government administers an extensive press promotion system whereby it gives subsidies to all daily newspapers.[footnote 11] In recent years, the same amount has been given to each paper (including market leaders) and the total amount of subsidies has reached more than AS 100 million (US$ 9.1 million) annually. The aim of the subsidies is to promote the survival of as many newspapers as possible in order to maintain a correspondingly wide range of editorial opinion.
In addition to this general promotion scheme, there is a special promotion system by which the government provides subsidies to a few "smaller newspapers that are of particular importance in shaping political opinion".[footnote 12] This system may have minimized the trend towards press concentration, but has not stopped it.
Of greater economic impact than the subsidy systems are the reduced postage fees available to daily papers. The government also provides subsidies to printing enterprises.
As of the end of 1992, an amendment to the anti-trust law was under discussion which would require all mergers involving media enterprises to be submitted to the Anti-Trust Authority, which would be able to forbid any merger that would endanger the plurality of editorial opinions. It would also prevent any cross-ownership of a newspaper and a radio station which would create a local media monopoly (there are plans to begin licensing private radio stations for the first time in 1993). Some critics point out that this amendment offers too little, too late, especially because it would not require a break-up of any of the existing media enterprises.
The Media Act obliges the publisher of periodicals to publish annually the status of ownership and any existing inter-connections with other media enterprises.[footnote 13]
7. REGISTRATION REQUIREMENTS
There is no obligation to register the publication of a newspaper with any authority or to obtain a licence. Any such duty would be considered an infringement of the constitutional guarantee of press freedom.
It is necessary to get a trading licence in order to publish or trade in books, wholesale newspapers, or operate printing offices. The publishing of newspapers is exempted from this requirement.[footnote 14]
Newspapers and other printed material must contain an imprint which shows the names and addresses of the publishers and printers. All publications, including newspapers, must deposit several copies with public libraries free of charge; this requirement is not a measure of control but rather is intended to ensure the public's access to all publications published in Austria.[footnote 15]
8. REGULATION OF IMPORT AND EXPORT OF PUBLICATIONS
There are no restrictions on the import and export of publications beyond those contained in the general customs laws. The right to freedom of information as guaranteed in Article 10 of the Convention also protects the right to receive newspapers from abroad without restrictions (other than those placed on the circulation of domestic papers). Although the police and customs authorities may seize foreign publications without a court order where there has been inadequate time to obtain a court order, confiscation without a basis in law violates the Constitution, according to a 1989 decision of the Constitutional Court.[footnote 16]
9. MECHANISMS OF PRESS SELF-REGULATION
The Austrian Press Council was founded in 1961 by the Association of Austrian Newspaper Publishers and the Austrian Journalists' Union in order to provide a mechanism of voluntary self-regulation. The Council consists of 10 representatives from each organization. According to its statute, the Council aims to ensure that the press fulfils its professional obligations, and that the freedom of the press is not violated. It is responsible for maintaining the press' reputation and for determining and preventing abuses. It is also the responsibility of the Council to represent the interests of the press before Parliament, the administration and the public.
Anyone may turn to the Press Council if he or she believes that an article represents an affront to public decency, intrudes into the private sphere or disregards the obligation to provide honest and accurate reporting or any other principle of journalism. The council has drawn up a catalogue of such principles, the Grundsätze für die publizistische Arbeit - Ehrenkodex der österreichischen Presse (Code of Ethics).
The Council has no legal enforcement power. Its only sanction is the publication of a judgment; the Council may also direct an offending paper to publish the Council's negative judgment, but it has no power by which to compel publication. Although most of the press publications respect and publish the Press Council's findings, the most powerful Austrian newspaper, the Neue Kronen-Zeitung, against which there have been many negative judgments, refuses to do so. The Press Council is also criticized for having only publishers and journalists as members and for not including impartial experts or representatives of the general public. As a consequence, the public is largely unaware of the Press Council's work and it is viewed by many as having little authority.
10. DEFAMATION
The influence of criminal law is still dominant for offences against honour and reputation, although recently there has been a trend towards greater application of civil law.
10.1 Differences between Criminal and Civil Actions
Criminal libel suits against the press are generally based on Article 111 of the Criminal Code.[footnote 17] Article 111 provides that anyone who publicly accuses another of having a contemptible character or attitude or of behaving contrary to honour or morality in such a way as to make him contemptible or otherwise lower him in public esteem shall be liable to a fine or to imprisonment for up to one year. Imprisonment in practice is virtually never ordered; in recent memory there have been no cases of imprisonment even for a few days.
If a mass media organ publishes an insult punishable by Article 111 of the Criminal Code, the aggrieved persons can claim compensation from the criminal court for the suffering (Media Act, Article 6). Compensation currently is limited by statute to AS 100,000 (US$ 9,100); an increase in this limit is expected because it is considered to be too low.
In a civil suit for libel, on the other hand, only material damage can be claimed, as well as retraction or correction of the defamatory statement.[footnote 18] In a few cases the amounts awarded can reach rather high levels (up to AS 1 million) but, because there is no compensation for non-material damage and because the insulted person has to prove the falsity of the statement, civil defamation has been less important than criminal defamation until recently. Nowadays civil actions are becoming more common; the mere threat of a civil action can put the journalist under pressure owing to the high cost of litigation and thus can have a negative impact on press freedom.
10.2 Defences
Previously, the only defence to criminal libel was that the statement was in fact true or, regarding an accusation which was not widely published, that the speaker reasonably believed that the statement was true. By Article 29 of the Media Act this strict burden of proof has been relieved; journalists now are not guilty of libel if they are able to establish both that they observed journalistic care (Beweis der Wahrnehmung der journalistischen Sorgfalt) and that there was a major public interest in the publication.
Concerning statements detrimental to business enterprises, the strict standards of competition law and unfair business practices are applied. Freedom of speech is, accordingly, severely restricted and the fact that the statement may promote a general social interest is no defence. Thus, for instance, an anti-smoking association was convicted and fined for distributing stickers which read "Only a Camel would go miles for a cigarette."[footnote 19]
10.3 Value Judgments and Public Figures
Article 111 of the Criminal Code and Article 1330 of the Civil Code apply to value judgments as well as to statements of fact. The severe case-law of the Austrian courts concerning offensive value judgments has been attenuated in the last few years as a result of decisions of the European Court of Human Rights[footnote 20] and, in general, has become more oriented towards the values of freedom of expression. In this context the status of the insulted person is considered and the courts have shown a readiness to require politicians to suffer a greater degree of criticism and scrutiny regarding matters which may affect their qualifications for public service than private persons. Nevertheless, some courts in recent decisions have remained very rigid; they treat allegations on the borderline between value-judgments and factual statements as factual statements requiring proof of truth or journalistic care, and may convict a person for a value-judgment which the court considers "excessive".
11. INVASION OF PRIVACY
The Media Act of 1981 introduced a separate cause of action for invasion of privacy: Article 7 provides that a media organ is obliged to grant compensation if matters concerning the private life (höchstpersönlicher Lebensbereich) of a person are presented in such a way as to degrade him or her in public opinion. Publication is permitted in any case where there is a "connection with public life".[footnote 21] Very little use has so far been made of Article 7 and it thus appears that it will not inhibit reporting on matters of legitimate public interest.
Article 78 of the Copyright Act forbids the publication of pictures which violate legitimate interests of the person pictured. A few courts have found that there was no violation where pictures were of "public figures"; this "public figure" doctrine has not yet, but may eventually, have an impact on defamation law.
Article 113 of the Criminal Code prohibits a person from reproaching another for having committed a criminal offence in respect of which the sentence has already been served or provisionally suspended, or in respect of which the determination of the sentence has been provisionally adjourned. Reproach is only justified, pursuant to Article 114, if required by a legal duty, protected by a legal right, or compelled for special reasons within the meaning of Article 113. In the case of Schwabe v. Austria,[footnote 22] the European Court of Human Rights recently ruled that a conviction under Article 113 violated Article 10 of the ECHR because the Austrian courts refused to consider as a defence that the reproach was in the public interest (namely, that a politician's prior conviction for a driving accident which resulted in a death could be relevant to his fitness for political office).
12. RIGHT OF REPLY AND/OR CORRECTION
Under the 1922 Press Act, any person who had been the subject of an incorrect statement in the press was granted the right to publish a reply free of charge without having to establish the reply's accuracy; the responsible editor was criminally liable if he refused to publish the reply. The right of reply was fundamentally reformed by the Media Act of 1981 (Article 9), which extended the right to all mass media, and established that any mass media organ may refuse to publish a reply if it is untrue. This reform constitutes a substantial improvement; however, the complicated procedural rules for establishing both the right of reply and the right not to publish a reply are still criticized. If a media organ refuses to publish a legitimate reply the offended person can sue for a penalty (and may be awarded increasing amounts if the media defendant continues to refuse.)[footnote 23]
If a libel suit is filed against a newspaper, it can be obliged to publish a statement announcing the filing of such an action, or else risk having the offending issue confiscated (see Section 18, infra).
13. INSULTS TO GOVERNMENT INSTITUTIONS OR OFFICIALS
Certain public authorities and institutions (including the federal Parliament and the national army) are protected against defamation by Article 116 of the Criminal Code. (Members of Parliament and other public officials must rely upon Article 111, see Section 10 supra.) Public disparagement of the Austrian state and its national symbols is punishable pursuant to Article 248. Treason and sedition constitute crimes if violence is applied or threatened (Article 242). None of these provisions has been used inappropriately against the press in the last few decades.
14. OFFICIAL SECRECY AND ACCESS TO GOVERNMENT-HELD INFORMATION
Article 20(4) of the Federal Constitution obliges the government and all the other administrative authorities to make available to all citizens information about all matters concerning their areas of activity. It reads, in relevant part:
All federal, state and local government bodies and all corporations under public law must give information on affairs within their responsibility unless laws protecting confidentiality provide for non-disclosure . . . ..
This right is granted to every citizen, not only to journalists. More detailed provisions are set forth in the federal and Länder Freedom of Information Acts (Auskunftspflichtgesetze). If information is denied, the person seeking information can appeal to the Administrative Court.
The right of access to information is restricted by the provisions concerning official secrecy, also anchored in the Federal Constitution (Article 20(3)). Whereas the government previously asserted that a great deal of information was protected by official secrecy, nowadays there is a tendency towards a more liberal approach.
If a civil servant makes information public by breaching a legal duty of confidentiality, only the civil servant will be found responsible. Journalists and other members of the media are not prevented from, and are not liable for, publishing such information. In fact during the last few years significant information about government wrongdoing and the internal workings of the state was published without any consequences to the press.
It is a crime to disclose official secrets if disclosure would risk severe damage to national defence or the international relations of the Austrian Republic (Section 255 of the Criminal Code). The law has been applied so as adequately to balance the right to freedom of
expression and national security interests; within the last decades, only a very few charges have been filed against the mass media.
The right to receive information further means that the government may not interfere with the collection of information by journalists when they are in places where they are entitled to be. Thus, the police's destruction of photographs of a demonstration was declared unconstitutional.[footnote 24]
15. ACCESS TO AND DISCLOSURE OF COURT DOCUMENTS AND PROCEEDINGS
Court hearings are public in principle. The public and the press may be excluded from parts of a trial only in very limited situations when necessary to protect the interests of juveniles, the rights of the parties or public order. There are no restrictions on the reporting of public hearings, except that radio and television transmission are not permitted.
On the other hand, police investigations and preliminary proceedings are confidential. Until 1981, criminal provisions strictly prohibited the publication of documents concerning these confidential proceedings. Since the Media Act of 1981 abolished these provisions, newspapers have been unscrupulous in publishing confidential information. Not only lawyers but also some journalists are of the opinion that the media very often exceed the limits of legitimate reporting and threaten the presumption of innocence by conducting a "trial by the press". In order to safeguard the presumption of innocence, Article 23 of the Media Act prohibits publications which are apt to influence the outcome of a criminal proceeding. But this rule is formulated so narrowly that there is still a very broad margin for reporting, and only excessive violations are punishable.
Various reform proposals are currently being discussed; while a return to the previous criminal prohibitions is rejected, it is proposed to add to the Media Act a provision forbidding the publication of the names of persons who are suspected or convicted of having committed a crime. Identification of a person would be admissible in any case where the person's identity would be of public interest.
16. ACCESS TO AND DISCLOSURE OF LEGISLATIVE DOCUMENTS AND PROCEEDINGS
Proceedings of Parliament are public, and reporting of these proceedings is privileged by law (Article 33 of the Constitution). The Constitution permits the exclusion of the public only in narrowly defined circumstances. In contrast to this general principle, the consultations of parliamentary committees are confidential. However, a journalist who receives information about such consultations may neither be prevented from nor punished for reporting the information.
For the last several years, representatives of the mass media have been entitled to attend the consultations of parliamentary investigating committees. This right has been very important in informing the public and generating discussion about significant public affairs.
17. COMMERCIAL SECRECY AND ACCESS TO INFORMATION HELD BY PRIVATE PARTIES
Employees are obliged not to disclose the business secrets of their companies (Article 11 of the Law on Competition). This obligation does not apply once the employment contract terminates, and it is generally held that this provision does not prevent the disclosure of information about illegal actions. The press may not be penalized if it publishes confidential information about a company which it received in violation of this duty of confidentiality.
At present, there is no law requiring private companies to disclose information of any kind to the public (except obligations provided by commercial law, for instance, to publish annual reports or balance sheets). This applies also for information which may be relevant to the environment. However, in this respect a law is currently under discussion to implement the EEC Directive on the Freedom of Access to Information about the Environment.[footnote 25]
18. PRIOR RESTRAINTS
Prior restraints are unconstitutional under Article 13 of the 1867 Basic Law. It is not clear if the prohibition of preventive measures also applies to interlocutory orders in the field of civil law. In practice such orders have been considered valid.
If there is a concrete suspicion that a publication violates a criminal law (such as libel under Article 111 of the Criminal Code), the publication can be confiscated; if the publication is a newspaper, all copies of the allegedly libellous issue may be seized (Article 36 of the Media Act). An independent judge decides whether confiscation is necessary based on a balancing of interests. The confiscation is only to be executed after the distribution has started. Confiscation, however, is very rare because it can be avoided if the newspaper publishes a statement that an action for libel has been initiated (Article 37 of the Media Act). The procedure represents an improvement over the previous law, which permitted the confiscation of newspapers relatively often.
The case-law has established that all media are protected against preventive measures. Thus, even a provision to evaluate films before their first public performance in the interests of protecting youth was ruled unconstitutional.[footnote 26] The Constitutional Court has further declared
unconstitutional a provision requiring the consent of the Labour Office for the publication of job-announcements for employment abroad.[footnote 27]
19. PROTECTION OF SOURCES
Article 31 of the Media Act provides strong protection for the confidentiality of journalists' sources. Publishers, editors, journalists and other employees of a media enterprise who are called as witnesses before a court or administrative authority have the right to refuse to answer questions referring to the author, contributor or source of information, or to the contents of information disclosed to them in regard to their professional activities. Furthermore, the Media Act prohibits the surveillance of telecommunications facilities of media enterprises except on the strength of a court order in the context of an investigation of a crime which carries a sentence of at least ten years' imprisonment.
20. RESTRICTIONS ON OFFENSIVE LANGUAGE AGAINST IDENTIFIABLE GROUPS
Article 283 of the Criminal Code made it a crime publicly to incite the commission of hostile activities against a religious, national or ethnic group. There are special criminal provisions against Nazi-propaganda. These have been amended recently to make possible the more effective prosecution of racist and national socialist activities.[footnote 28] Complaints are sometimes filed with the Press Council against publications for spreading racist prejudices.
21. BLASPHEMY, OBSCENITY AND PROTECTION OF PUBLIC MORALS
It is a criminal offence to publish certain kinds of pornographic and other materials which infringe public morality.[footnote 29] In the light of the present, rather liberal views, they are not very important for daily newspapers; for the most part only certain specialized periodicals are affected.
Blasphemy itself is not punishable under Austrian law. However, Article 188 of the Criminal Code makes it a crime publicly to discredit persons, objects, beliefs or institutions worshipped by a church or religious community recognized in Austria, under circumstances in which the public display is likely to cause justified disapproval or a disturbance of the religious peace. Problems of freedom of expression have been encountered in the context of the confiscation of films,[footnote 30] but there have not been reports of any proceedings against the press in recent years.
22. RESTRICTIONS ON ADVERTISING
Unlike broadcasting, where legal restrictions on alcohol and tobacco advertising exist, there are no restrictions on advertising in newspapers. There currently is discussion as to whether cigarette advertising should be completely forbidden.
As far as competition law is concerned, the situation is more difficult. For instance, until recently the courts ruled invalid all forms of comparative advertising (that is, advertising which states that the advertised product is better than another named product). However, courts are now beginning to change their opinions, especially since the Constitutional Court recognized that advertising comes within the protection of Article 10 of the European Convention.[footnote 31] Certain kinds of comparative advertisements are now tolerated, so long as they are neither misleading, deprecating, insulting nor offensive.[footnote 32] The Constitutional Court declared restrictions on advertising by lawyers and tax consultants unconstitutional.[footnote 33]
CONCLUSION
In Austria press freedom is protected to a significant extent by the Constitution and by the European Convention on Human Rights which has constitutional status; moreover, all courts may apply the constitutional protections (although only the Constitutional Court may invalidate a legislative action) and individuals may file complaints (after exhausting domestic remedies) with the European Commission on Human Rights.
Freedom of the press was substantially extended by the Media Act of 1981. Since this law was sustained as valid, investigative journalism in Austria has noticeably improved and it can now truthfully be said that the press serves in practice as a "public watchdog". The two most important reforms introduced by the Media Act were, first, the liberalization of the standard of proof in defamation actions so that press defendants now only have to prove that they fulfilled the requirements of journalistic care (rather than having to prove a statement's truth); and (2) the introduction of protection for the confidentiality of journalists' sources which is as strong as any in Europe. A reform fostered to a large extent by the judgments of the European Court of Human Rights was the increase in protection afforded to value judgments so that now harsher criticism is tolerated, especially in the context of political debates. As a result, a "constitutionalization" of the Austrian libel law has been started, based on the relation between freedom of expression and the requirements of democracy.
On the other hand, according to many critics, the media does not adequately respect the privacy of individuals. This applies, in particular, to reports about criminal investigations and trials, concerning which the yellow press regularly exceeds the limits of morality and fairness. Because the Press Council has failed to promote responsible reporting in this area, proposals to prohibit identification of criminal suspects in press coverage are being discussed.
The weakest aspect of the Austrian Press is the extremely high concentration of ownership of daily newspapers. As a consequence, two jointly controlled mass circulation newspapers occupy a quasi-monopolistic position. The smaller newspapers and some of the quality newspapers are suffering financially. The government has attempted to address this trend towards concentration by proposing amendments to the anti-trust law and granting subsidies to publications on unsteady financial ground which contribute to the formation of political opinion. It is difficult to judge whether these efforts will be effective.
1. For more extensive discussions of Austria's law and practice concerning the press see: W Berka, Das Recht der Massenmedien (The Law on the Mass Media) (Wien, Köln, Graz: Böhlau Verlag, 1989); W Berka, "Die Kommunikationsfreiheit in Österreich" (Freedom of Communication in Austria), Europäische Grundrecht-Zeitschrift (1982), 413-27 (a revised and updated version of this article will be published in 1993 by Engel Verlag (Strasbourg) in a reader on fundamental rights in Austria; R Hartmann & S Rieder, Kommentar zum Mediengesetz (Commentary on the Media Act) (Wien: Manz Verlag, 1985). Information about developments in Austrian media law and important decisions of the courts may be found in the periodical, Medien und Recht (Wien).
2. VfSlg (Decisions of the Austrian Constitutional Court) 552/1926, 630/1926, 949/1928, 1089/1928, 1829/1949, 1830/1949, 1846/1949. The prohibition of censorship is still taken very seriously. See Section 18, infra.
3. For instance, the Constitutional Court cited the The Sunday Times case, regarding the importance of press freedom, in VfSlg 11.297/1982 (Hainburg case), see note 24 infra. The Constitutional Court also referred to various decisions of the European Commission of Human Rights in VfSlg. 10.948/1986 (Die ganze Woche case), see note 31 infra.
4. Lingens, Judgment of 8 July 1986, Series A no. 103 (ruling that the limits of acceptable criticism regarding politicians in their public capacities are wider than regarding private citizens and that a defamation defendant must not be required to prove the truth of a value-judgement). The courts have cited Lingens in a number of decisions. See, e.g., the decisions of the Supreme Court, 18 March 1987, 9 Os 18, 19/87; and 27 Jan. 1986, Evidenzblatt 1987/126; and the decision of the Vienna Court of Appeal, 2 Dec. 1986, 27 Bs 545/66, in Medien und Recht (1986), 11.
5. The text of Article 10 is set forth in Appendix A.
6. See VfSlg 11.314/1987.
7. See Media Act, Article 41(2).
8. Bundesgesetz vom 12 June 1981 über die Presse und andere publizistische Medien (Mediengesetz) BGBI 1981/314, as last amended by BGBl 1988/233.
9. Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks (Rundfunkgesetz - RFG), BGBl 1984/379, as last amended BGBl 1987/606. The Austrian government has always maintained a monopoly on radio and television broadcasting. Only the Austrian Broadcasting Corporation (ORF), an independent public enterprise, is entitled to broadcast radio and television programmes. Objective and impartial reporting, representation of a wide variety of opinions, balanced programming and complete independence for the staff is guaranteed by constitutional and legal provisions. Foreign programmes can be received by cable or satellite without interference. The European Commission of Human Rights declared admissible several applications challenging the Austrian broadcasting monopoly (applications no. 13914/88, 15041/89, 15717/89, 15779/89, 17Z07/90) which have not yet been decided. A bill providing for the licensing of private local radio stations is expected to be adopted in 1993.
10. These are the Neue Kronen-Zeitung (with a daily circulation of nearly 1 million) and the Kurier (with a daily circulation of more than 400,000). Together they account for more than 80 per cent of the circulation of all dailies in Vienna and more than 50 per cent of the circulation of dailies throughout Austria.
11. Press Promotion Act of 1985 (Presseförderungsgesetz) 1985 BGBl 228, as last amended, BGBl 1992/465. See also the Periodical Promotion Act (vgl BGBl 1984/39, as last amended BGBl 1991/628), which promotes periodical publications in the field of culture and politics.
12. Report of the Austrian Government to the UN Human Rights Committee, UN Doc. No. CCPR/C/51/Add.2 (9 Nov. 1990), para. 208.
13. Media Act, Article 25.
14. Industrial Code (Gewerbeordnung) of 1973, Article 2(1) no. 18.
15. Media Act, Articles 24 and 43.
16. See VfSlg 12.104/1989 (Demokratischer Informationsdienst case).
17. Bundesgesetz vom 23 Jan. 1974 über die mit gerichtlicher Strafe bedrohten Handlungen (Strafgesetzbuch - StGB) BGBl 60, as last amended BGBl 1991/628. On occasion, Article 115 of the Criminal Code, which prohibits different types of libel offences, is used.
18. Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch vom 1 June 1811 JGS 946, as last amended BGB1 1989/656).
19. See the decision of the Supreme Court, 13 Sept. 1988 (Camel case), published in Medien und Recht (1988), 194. The European Commission of Human Rights was of the opinion that the conviction did not violate Article 10 of the ECHR and thus declared the application (no. 17200/90) inadmissible.
20. See Lingens v. Austria, Judgment of 8 July 1986, Series A no. 103; Oberschlick v. Austria, Judgment of 23 May 1991, Series A no. 204; Schwabe v. Austria, Judgment of 28 Aug. 1992, Series A no. 242-B.
21. For more information about the right to privacy see: G Hager, "Persönlichkeitsschutz im Straf- und Medienrecht", (1991); G Korn & J Neumayer, "Persönlichkeitsschutz im Zivil- und Wettbewerbsrecht", (1991).
22. Judgment of 28 Aug. 1992, Series A no. 242-B.
23. For more information about the right of reply, see B Weis, "Handbuch der Entgegnung", Medien und Recht (1989).
24. VfSlg 11.297/1987 (Hainburg case).
25. 90/313/EEC, OJ No L 158, 23 June 1990, 56.
26. VfSlg 8461/1978.
27. VfGH 19 June 1990, ÖJZ 1992, 38.
28. Verbotsgesetz vom 8 May 1945 StGB1 13, as last amended BGB1 1992/48.
29. See Criminal Code, Arts. 218, 219, 220; see also Pornographiegesetz BGB1 1950/97, as last amended BGB1 1988/599.
30. See, e.g., the confiscation of a film called Das Liebeskonzil (The Council of Love) which is subject of an application declared admissible by the European Commission of Human Rights (Preminger v. Austria, 12 April 1991, application no. 13470/87).
31. VfSlg 10.948/1986 (Die ganze Woche).
32. See, e.g., the decision of the Supreme Court, 26 June 1990 (Media-Analyse 1988 case), published in Medien und Recht (1990), 144.
33. See, e.g., the decision of the Constitutional Court, 27 Sept. 1990, VfSlg 95, 96.
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