Download article as .pdf document
2008-10-13 – by Philipp Aichinger (Die Presse)
Supreme Court contradicts lower courts: A caricature is permissible under certain circumstances. Background: A dispute over a Strache caricature in “Österreich”.
Vienna. The 2008 National Council elections are over, but a controversial case from the election campaign two years ago has only just been put on the agenda of the Supreme Court (OGH). Its basic statement: It could be permissible to associate FPÖ leader Heinz-Christian Strache with an "ass with ears".
In September 2006, the Upper Austria edition of the newspaper "Österreich" featured a caricature consisting of four images lined up one after the other. The images show a male and a female person looking at a picture in a museum. The picture shows a buttock with ears. The following dialogue takes place between the cartoon characters: "Great. I think Hazeh Strache is portrayed very well." - "What? Stop it now! That's not HC Strache, that's an ass with ears!" - "Now that you mention it."
The FPÖ politician didn't find it so funny: He demanded a criminal conviction for insult and compensation under media law for defamation. The newspaper argued that the caricature was permissible in the light of freedom of expression because it was a criticism of Strache's immigration policy. However, such an interpretation was not understandable, even in the light of the election campaign, said the first instance, the Vienna Regional Court. The average reader would not recognize any allusion to a foreign name in the use of the first name "Hazeh" instead of "HC" in the cartoon. It was a gross personal defamation of Strache. He was awarded 2000 euros in compensation.
The Vienna Higher Regional Court took a similar view on the appeal: the caricature contained statements that were defamatory and were not covered by freedom of opinion or freedom of art. There was no specification of the target of any criticism of Strache that was conveyed. It was a media attack that was defamatory and had no identifiable specific reason.
In principle, such proceedings end at the Higher Regional Court. But here the Public Prosecutor's Office intervened and filed an application for an extraordinary reopening. The defendant newspaper also demanded a renewal of the criminal proceedings on the grounds of a violation of the freedom of expression guaranteed in the European Convention on Human Rights. Now it was the turn of the Supreme Court.
Political context to be examined
And the Supreme Court judges (15 Os 10/08x) shared the concerns of the General Prosecutor's Office: There were significant concerns about the correctness of the assessment of the lower courts. The political context of the caricature had not been taken into account. In the case of a top political official, however, the fact that the caricature was printed in the politics section alone indicated a direct connection to the party's political positions. It was not necessary for the caricature or text to explicitly refer to this. The Supreme Court recalled the case law of the European Court of Human Rights (ECHR), according to which greater tolerance must be shown when criticizing a politician.
The previous court decisions were overturned by the Supreme Court. Now it is back to the court of first instance. It must clarify the question of whether the "ass with ears" comparison is acceptable in connection with Strache's political activity. The Supreme Court's considerations are not yet a precedent, explains Graz lawyer Stefan Lausegger (who was not involved in the proceedings) in an interview with the "Presse". However, he considers the Supreme Court's view to be excessive: such a disparaging term without explanation violates a politician's right to honor, says Lausegger.
By the way: According to a ruling by the European Court of Human Rights, it was possible to call a politician an idiot after a provocative speech without punishment. An Austrian journalist was proven right in the 1990s.
Further information on the topic Media Law.