Legal Ambiguity: Skinheads and ORF

Heinz-Christian Strache mingled with party supporters after addressing a Freedom Party (FPÖ) rally last March, signing autographs across a temporary metal guardrail typical of any outdoor event. While he was chatting, the FPÖ leader was approached by two young men; apparently skinheads. Strache, a talented politician, was courteous, but it was clear he was apprehensive. After a brief exchange, Strache continued on among the crowd, but then became alarmed and immediately asked for the police. He told his entourage "…a journalist, apparently three agents provocateur, deliberately set up these neo-Nazis and apparently ordered them to ‘Heil Hitler.’"

This scene was aired on an edition of Am Schauplatz ("On The Scene"), a TV show on state-run ORF, in an episode that followed the lives of two Austrian skinheads. The Strache incident created a controversy, and although the salute itself is neither seen nor heard in the footage, Strache accused the documentary’s producer, Eduard Moschitz, of goading the two skinheads to make the salute. The incident could have made Strache Moschitz and the skinheads potentially guilty of Wiederbetätigung, "committing the deed again", i.e. voicing support for the Nazis and their ideology – a law that was voted in after the Second World War to prevent a revival of the Nazi party or its ideology in the future.

Moschitz has steadfastly denied the accusation, adding that the two skinheads did not make any Nazi salute at all. The two skinheads themselves have fumbled over their story and have given contradicting statements, but have denied giving any Hitler salutes during the scene in question.

In September, in order to determine whether Moschitz and his ORF team are guilty of "committing the deed again," a Viennese court ordered ORF to release the full, unedited footage of the incident, or face a fine.

But ORF claims that the demand is in violation of Austria’s media law, which protects editorial confidentiality. The law stipulates that media professionals have the right to refuse answering questions concerning almost all aspects of their sources and documentation. Further, this right cannot be bypassed by demanding that the journalists surrender documents, data carriers printed matter, etc., and the authorities cannot confiscate them.

Justice Minister Claudia Bandion-Ortner and Secretary of State for the Media Josef Ostermayer had initially backed the courts’ interpretation of the law. However, following the outbreak of protests from Austrian journalism organizations, both have now agreed to review the media law this month, well ahead of the initially suggested post-Christmas meeting.  They will be joined by more than 40 media law experts, journalists and press freedom advocates in addressing the concerns surrounding the law, potentially bringing it closer in line with fellow European countries.

But the Strache-skinhead incident is not the only situation that has brought the media and the authorities into conflict, and the ramifications could affect more than just Austrian media law.

In September, three journalists covering the ongoing Hypo-Alpe-Aldria banking scandal court case in Munich – Kurt Kuch of News and Ulla Schmid and Michael Nikbakhsh of profil, both weekly news magazines – were interrogated as criminal suspects by Viennese authorities on behalf of their counterparts in Bavaria.

Their crime? Quoting directly from court reports; not a crime under Austrian media law, but prohibited in Germany. The law is supposed to ensure against the prejudicing of lay judges and juries, and if broken is punishable in Germany by fines or up to a year in prison. Although the journalists are all Austrians and write for Austrian publications, the journalists are deemed liable under German law because these publications are sold at German newsstands.

But intense protest from press freedom advocacy groups followed, with the Austrian Association of Private Broadcasters (VÖP) accusing the authorities of breaking Austrian law and possessing a "complete lack of sensitivity in dealing with the media."

The Viennese authorities have now admitted their "error" and have refused to question two journalists from Wirtschaftsblatt who have also been indicted in Bavaria.  The case may not be over though: The Bavarian courts are still able to continue prosecution of the offending journalists in absentia.

Austria is known for being among the world’s leaders in protecting press freedom. Austria’s Presseclub Concordia is the world’s oldest press association, and since 1992, the country has been host to the International Press Institute. It is currently ranked seventh on the 2010 Press Freedom Index, published annually by Reporters Without Borders.

However these two cases raise a number of issues for press freedom advocates, including the relevant EU-level laws regarding a reporter’s privilege and editorial confidentiality, but also the necessity of member states to cooperate with each other in investigations.

But where does this leave the recent violation of Wiederbetätigung? The skinheads have been inconsistent in their story, first saying that Moschitz had paid them between 80 and 130 euros to say "Heil Hitler," then changing their story. They also claimed that Moschitz was supposed to pay them 100 euros a day for filming. Finally in the daily Kurier, they stated that they were still owed money from ORF and that they feel "used" by Strache. One of them also stated that he might have said "Heil Hitler" at some time in the footage, but not in the scene in question.

Moschitz and ORF refused to produce any documentation, and using both Moschitz’s right to his intellectual property and the protection stipulated in Austrian media law, have so far been successful. In turn, ORF has filed suit against the Austrian government at the European Court of Human Rights, where there appears to be ample case law supporting their position. But the Hypo-Alpe-Aldria episode also highlights the remaining ambiguities relating to editorial confidentiality at the EU level.

But further case law would not necessarily be needed if there were to be a common European media law, as proposed by Jörg Leichtfried, leader of the SPÖ (Social Democratic Party) in the European Parliament and member of the Subcommittee on Human Rights at the Parliament.

"This [case] shows once again, that it is high time for discussion across Europe about these rules in order to be able to prevent such massive restrictions of press freedom," Leichtfried said.