Constitutional Court 07.03.2024, E 2908/2023
The Constitutional Court (VfGH) recently examined the relationship between the right to protection of personality and human dignity on the one hand and the right to freedom of expression on the other. According to Article 10 Paragraph 1 of the ECHR, everyone has the right to freedom of expression. This also includes "news" or "ideas" that provoke, shock or disturb. Freedom of expression has a special meaning and function in a democratic society. Mass media have the task of disseminating information and ideas on political issues and issues of public interest. The right to protection of personality and human dignity (Article 8 of the ECHR), on the other hand, protects a person's innate rights. These include physical integrity, freedom, honor, protection of name and also privacy.
The reason for the specific decision was the reporting by Red Bull Media GmbH on the television program "Servus TV" in the program "Servus Nachrichten Spezial" on November 2, 2020. The broadcast was about the results of the terrorist attack that took place that evening in Vienna. Specifically, videos and photos of the events taken by third parties were broadcast, showing the shootout between the attacker and the police officers, as well as recordings of passers-by, some of whom were seriously injured, and the body of the attacker. The broadcast of this content was contrary to the call by the Vienna State Police Directorate that no pictures or videos of the events should be posted on social media.
The Austrian Communications Authority, as the competent authority, initiated proceedings on suspicion of violation of the Audiovisual Media Services Act (AMD-G). After carrying out these proceedings, KommAustria issued a ruling declaring a disregard for human dignity in accordance with Section 30 Paragraph 1 AMD-G and a violation of Section 41 Paragraph 5 AMD-G due to failure to comply with journalistic diligence. Red Bull Media House GmbH lodged an appeal against this ruling, which was dismissed as unfounded by the Federal Administrative Court (BVwG). Red Bull Media House GmbH then turned to the Constitutional Court. The latter overturned the BVwG's ruling because it violated Red Bull Media House GmbH's right to freedom of expression, which is protected by Article 10 Paragraph 1 of the European Convention on Human Rights (ECHR).
The Constitutional Court found that, contrary to the opinion of the Federal Administrative Court, video and image reporting is not primarily about the “Serving the desire for sensation” but rather journalistic reporting, which entails a special editorial responsibility in its design. The Constitutional Court states: “This responsibility includes, on the one hand, taking into account the personal protection of the victims of a terrorist attack and the public interest in the emergency services dealing with the situation in order to restore the safety of the population when reporting.“. The public interest in information about a terrorist attack includes “also the task of reporting to make the public aware of the cruelty and senselessness of the violence and the suffering of innocent people and those affected by conflicts that form the background of a terrorist attackArticle 10 of the ECHR recognises that “Interest in awakening the public through shocking, hurtful and disturbing images about the effects of inhuman violence“, especially when it comes to terrorist attacks.
The Constitutional Court thus shows that a terrorist attack represents an exceptional situation that is of such extraordinary interest to the public that even human dignity can take a back seat to freedom of the press.
10.03.2024