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December 7, 2021updated 30 Sep 2022 10:49am

Austrian newspaper should not have been ordered to turn user information over to political party, says ECHR

By Bron Maher

Austrian publisher Der Standard “should not have been forced to reveal online commenters’ personal information” by the country’s Supreme Court, the European Court of Human Rights (ECHR) has ruled.

The ECHR said court orders forcing Der Standard to turn information about commenters on its website over to Austria’s far-right Freedom Party (FPO) had “not been ‘necessary in a democratic society’” and had thus unjustifiably interfered with Der Standard’s freedom of expression. 

The case centred on anonymous comments attacking the FPO, which were posted under two articles published on derstandard.at in 2012 and 2013.

One comment under the 2012 article referred to officials at the party’s Carinthian branch as “corrupt politician-assholes”, and another said that opposition to the branch’s then-leader Kurt Scheuch would “not have happened if those parties had been banned for their ongoing Nazi revival”.

Similarly, a comment under a Der Standard interview with the FPO’s then-general secretary (and current leader) Herbert Kickl said that “if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [Kickl] would be one of the greatest criminals in the Second Republic”.

Scheuch, the FPO Carinthian branch and Kickl asked Der Standard to delete the comments and provide details for the anonymous users with a view to launching civil and criminal proceedings against them.

The publisher deleted each comment, but refused to provide the user information, prompting Scheuch and the FPO branch, and later Hickl, to launch two legal proceedings.

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In each case Austria’s Supreme Court ruled that Der Standard should turn over the user information, holding that “as there had been no connection with journalistic activity, there had been no unlawful interference with the applicant company’s right to enjoy freedom of the press”.

Der Standard lodged a complaint to the ECHR over the ruling in August 2015, saying that the orders to disclose the data contravened Article 10 of the European Convention on Human Rights, which concerns freedom of expression.

On Tuesday the ECHR issued its unanimous decision agreeing with the publisher.

“The applicant company’s overall function was to further open discussion and to disseminate ideas with regard to topics of public interest, as protected by freedom of the press… an obligation to reveal user information would have a chilling effect on contribution to debate,” the judgment said.

“The comments at issue had been neither hate speech nor incitement to violence, and had been about two politicians and a political party in a political debate of public interest.”

The judgment did not name FPO politicians Scheuch and Hickl, but the pair were identifiable by the inclusion of their initials and job titles.

The ECHR dismissed Der Standard’s claim for pecuniary damage, saying “the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage the applicant company may have sustained”. It did, however, instruct the Austrian state to pay Der Standard €17,000 in costs and expenses.

A three-month period now begins during which any party can request the case be referred to the ECHR’s Grand Chamber to make a further, final judgment. 

[Read more: UK publishers could be hit by ‘right to be forgotten’ deletion requests after ECHR judgment]

Media law consultant and journalist David Banks has previously told Press Gazette that UK courts do “take into account” judgments from the ECHR.

“Facts will differ from case to case – so if a UK court may decide it feels that facts in a case for it aren’t the same as this particular case, they may decide in a different way,” he said. “It would then be open for people involved in the UK case to take an appeal to the European Court of Human Rights themselves, if they felt that the UK courts have not ruled properly in a particular case.”

Picture: Flickr/Guilhem Vellut

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