Speak No Evil

The high profile arrest and imprisonment of Holocaust-denier David Irving in Austria worried a lot of people. Among other things, it highlighted the contrasting laws governing freedom of expression across Europe.

However, it is not only Austrian Holocaust denial laws that concern advocates of free speech: As of last month, Austria became – second only to Turkey – the country most often cited for violations of Article 10 of the European Convention of Human Rights (ECHR), which ensures free expression.

Furthermore, a Mar. 22 report by the prominent free-speech advocacy group Article 19 details a series of worrying concerns, including the large number of defamation cases in Austria, the high level of media concentration, the apparent State control of the national broadcaster ORF, and the poor implementation of legislation guaranteeing freedom of information.

In 1984, Austria gained the dubious distinction of being the first country to be convicted by the (European Court of Human Rights (ECtHR) for breaching Article 10. However, rather than spurring reform, the situation seems to have deteriorated. Since the beginning of 2006, Austria has been at the receiving end of ECtHR judgements no less than nine times, four of those this year alone, putting it behind new EU members Bulgaria and Romania, and even Russia, a country notorious for media interference.

The abuses, however, are generally far less serious, and not on the level of the murder of Ana Politskovaya. To quote the two most recent cases, those that ‘tipped the balance,’ one involved apocryphal comments of Austrian skier Stefan Eberharter published in Profil magazine in 2001, in which he was satirically quoted gloating over the then recent motorcycle accident of fellow sportsman Hermann Maier. The other involved an article in the weekly Falter questioning prematurely discontinued investigations into illegal information exchanges between the Austrian police force and FPÖ politicians.

In both cases, the publications were found guilty of defamation under the Mediengesetz (Media Act) in the Austrian Criminal Courts, and where forced to pay damages and fines. Both appealed to the European Court of Human Rights in Strasbourg and had the verdicts quashed, on the grounds that they breached the plaintiff’s rights to freedom of expression.

Such cases are frequent in Austria, demonstrating an incompatibility between the Austrian legal system and the European Convention, to which Austria is a signatory.

On those grounds, the Austrian media laws need updating, as indicated in the Article 19 report, which was timed to coincide with the current audit of Austria by the United Nations Committee on Human Rights. One major concern raised by Article 19 is the high number of defamation cases brought and won by public officials, mainly judges and politicians, suggesting judicial bias and inappropriate levels of protection to those in power.

"Politicians and judges are public figures and ought to tolerate a high degree of criticism in their functioning," wrote Article 19 in the report. "This principle does not appear to be tolerated in Austria."

Many of the cases arose under the ÖVP and FPÖ coalition government, which sued many critics of the regime, pointing toward causation rather than coincidence. Thus the recent change in leadership may bring about a decrease in the amount of incidents. Furthermore, freedom of expression is, on the whole, generally respected in Austrian society. The obvious fear, however, is that with the constant threat of defamation cases dangling over the heads of journalists, self-censorship may be imposed – people may simply be too afraid to speak out, due to the legal difficulties they could incur.

However, a bigger problem may be the extremely high level of media concentration in Austria, according to the Article 19 report, where almost all of the media are owned by one of two conglomerates, making it one of the most highly concentrated media environments worldwide.

By far the most dominant newspaper is the tabloid the Kronen Zeitung, which is, according to Article 19, read by nearly half of the population over 14 year olds, and therefore exerts considerable influence over public opinion. The Kronen Zeitung is part of an organisation that owns many other popular print media, including the more serious tabloid daily Kurier and weekly magazine Profil, and controls an overwhelming 62% of all Austrian publications, including 64% of the daily newspaper market and 100% of all weekly political magazines.

Although it is difficult to criticise any publication for its popularity, the implications for editorial impartiality are self evident.

While there may appear to be a full range of opinions and perspectives available to the consumer, corporate loyalty, or ‘towing the company line,’ may mean that all views received ultimately fit into one of two categories - those okayed by one conglomerate, or those okayed by the other.

Equally, most readers are unlikely to be aware of this ownership structure, as publications are hesitant to be critical of themselves. The presence of such dominating forces also makes it extremely difficult for new, smaller publications to make any impact.

In broadcasting, things are not much better. The allocation of licences is ‘opaque,’ generally ‘favouring the existing conglomerates’ at the expense of small independent and regional broadcasters, says  Article 19.

In radio, this results in a focus on programming that draws large advertising revenues, as opposed to in-depth news or discussion programmes, or matters of interest to local populations. This situation is mirrored in television, where the country’s only private, national broadcaster, ATV, is predominantly an entertainment channel.

Perhaps most disturbing, however, is what is seen as an abnormally high level of political control over the national broadcaster, ORF. Criticism by news anchor Armin Wolf in May of ORF’s lack of editorial independence were followed by an embarrassing slip by an Austrian official before the ECtHR in November, who claimed that the ORF was a ‘government run organisation’.

Although this is an exaggeration, and was publicly recognised as such by the Court, the ruling party holds more than just a little sway over the ORF’s ‘Foundation Council’, or board of directors.

Of the Council’s 35 members, half are directly appointed by the government, and a third are political party nominees. According to Article 19, an unspoken rule compels members to vote according to the party line on any issue.

Whether the Article 19 report will have any effect remains to be seen. For the time being at least, it is more than likely that the Austrian media consumer will be unaware of any behind-the-scenes machinations  in the media world. After all, who is going to tell them?

The European Convention on Human Rights (ECHR) was adopted under the patronage of the European Commission in 1950. All member states are signatories of the Convention, and new members are expected to sign. 

The Convention formed the European Court of Human rights (ECtHR), which has its seat in Strasbourg, to preside over cases in which a citizen feels his rights under the Convention have been abused by a State. 

The decisions of the ECtHR are legally binding, and the Court has the power to award damages. Article 10 of the ECHR deals with free speech.

Under this article, "Everyone has the right to freedom of expression," including the "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

However, as this right "carries (…) duties and responsibilities," Article 10 does contain provisions for restrictions, for example, when this right conflicts with "interests of national security," or "the reputation or rights of others." Article 19, from which the advocacy group takes its name, refers to the equivalent article in the Universal Declaration of Human Rights.