Should bankers be named and shamed? Strasbourg latest

22 January 2012 by Rosalind English

Standard Verlags GmbH v. Austria (no. 3) (no. 34702/07) – read judgment

On the face of it this judgment is no more than a run of the mill case ( in a line running from Bladet Tromso through Fressoz and Roire to Flinkkilä and Others) concerning freedom of speech in one of the Convention signatory states where media controls are a great deal more stringent than they are here. However with the ongoing Leveson inquiry and speculations about its future recommendations occupying many column inches in the UK media it is instructive to see how other countries apply their press restrictions and indeed how Strasbourg approaches any challenge brought against them.

Background

The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility.

Rauscher as head of the bank’s treasury brought proceedings against the applicant company for disclosing his identity in that article.  In its defence, the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “scapegoat”. The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father’s position. This argument, initially successful, was ultimately rejected by the Vienna Court of Appeal, which, whilst it agreed that there was a public interest in reporting that the claimant had been presented as someone suspected of embezzling a large sum of money, found that the lower courts had carried out the wrong balancing act. “The mere public interest” in the reporting of a crime did not by itself suffice. At the time the article was published, the investigation into the affair was still in the early stages and  no proceedings had yet been brought against the claimant. The subject matter of the article in question was only the rumours of accusations against him by two senior bank officials. Therefore, at this time

there was no independent value in the disclosure of the claimant’s name that would have outweighed the legitimate interest in protecting his anonymity….The claimant’s name was clearly disclosed in order to make a connection with his father, the former regional government member responsible for finance, and by doing so create a “story” which would satisfy the public’s curiosity and appetite for the sensational to a high degree.

Rauscher was awarded EUR 5,000 compensation.

Before Strasbourg, the applicant company relied on Article 10 (freedom of expression) of the Convention, contending that it had not gone beyond its remit of responsible reporting by disclosing Mr Rauscher’s name; that being able to mention the names of those responsible it would not have been possible for the press to convey the extent to which politics and banking were intertwined.

The Court found that Article 10 had indeed been violated, and awarded the applicant company EUR 7,602.12 by way of pecuniary damage (just satisfaction, in Article 41 terms) and its costs and expenses.

The Court’s reasoning

The Court agreed with the Austrian courts that the case concerned a balancing of the applicant company’s right to freedom of expression under Article 10 against the claimant’s right to protection of his identity. It repeated the mantra that the concept of “private life” protected by Article 8 of the Convention includes aspects relating to personal identity, such as a person’s name or picture (Von Hannover v. Germany, no. 59320/00, para 50).  When balancing the protection of private life against freedom of expression, one factor it has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” . However, the Court observed, significantly, (and perhaps ominously, at least for those witnesses participating in the Leveson inquiry)

the question whether or not a person, whose interests have been violated by reporting in the media, is a public figure is only one element among others to be taken into account

Where other factors of “public interest” are in play, such as the close connection of politics and banking, said the Court, there was “little scope” under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest. Despite the potential for undermining the presumption of innocence principle where the person identified is subject to criminal proceedings, the Court attached particular significance to the fact that the article at issue was “not a typical example of court reporting” but focussed “mainly on the political dimension of the banking scandal at hand.”

Names, persons and personal relationships are clearly of considerable importance in this sphere. It is difficult to see how the applicant company could have reported on these issues in a meaningful manner without mentioning the names of all those involved, including the claimant

The Court therefore concluded that the domestic courts had overstepped the narrow margin of appreciation afforded to them with regard to restrictions on debates of public interest. It followed that the interference with the applicant company’s right to freedom of expression was not “necessary in a democratic society”.

Comment

So whatever tighter manacles are forged for the press by the Leveson report, if at all, the moral to be drawn from this story is that journalists may still be able to enlist the protection of Article 10 for “naming and shaming” by peppering their copy with references to broader political points, whether or not the identification of the individual itself adds anything to the debate at issue.

The Committee of Ministers of the Council of Europe (the executive arm of the Strasbourg Court’s ruling body) have in place a non-binding Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The principles behind this recommendation are 1) that  journalists must be able to “freely report and comment” on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles, but that 2) any information relating to ongoing criminal proceedings should only be disseminated through the media where this does not prejudice the presumption of innocence of the suspect, and that in all events their rights to privacy under Article 8 should be respected.

As we can see however these principles are easily circumvented in practice. Celebrities and other public figures will not find anything of comfort in Strasbourg’s jurisprudence on this particular matter; the judgment in Von Hannover  in other words is an exception that proves the rule.

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