Kahiu v. Mutua
Closed Expands Expression
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The European Court of Human Rights held, by four votes to three, that an injunction prohibiting the display of a controversial work of art violated the applicant’s right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Austrian domestic courts granted an injunction against Vereinigung Bildender Künstler Wiener Secession (the applicant) to prevent them from exhibiting a painting by Otto Mühl which portrayed numerous public figures in various sexual activities. Meischberger, a member of the National Assembly and former general secretary of the Freedom Party of Austria, filed for the injunction on the claim that his depiction in the painting debased him and his public standing. The Court held that the injunction and protection of personal rights was disproportionate to the right to freedom of expression in a democratic society, when the painting was satirical and contributed to public debate. The Court also drew attention to the adverse implications of an injunction unlimited in time and space, as granted against the applicant in the present case.
Vereinigung Bildender Künstler Wiener Secession (the applicant) was an association of artists based in Vienna, Austria, with a focus on contemporary art and experimentation. As part of their 100th anniversary celebrations, the applicant held a public exhibition between April 03 and June 21, 1998 entitled ‘The Century of Artistic Freedom’. Among the works of art on display was a painting produced especially for the exhibition, entitled ‘Apocalypse’ by Austrian painter Otto Mühl. The work depicted 34 public figures nude and engaging in sexual activities – including Mother Teresa, Jörg Haider (former head of the Austrian Freedom Party) and Hermann Groer (the Austrian cardinal). Their faces were blown-up photographs taken from newspaper clippings, and black bars covered some of their eyes. One of the public figures portrayed by Mühl was Mr Meischberger, who was a member of the National Assembly at the time and a former general secretary of the Austrian Freedom party. In the painting, Meischberger was depicted holding Haider’s penis while being touched by two other Freedom Party politicians, and ejaculating on Mother Teresa.
On June 11, 1998, Austrian newspaper Täglich Alles expressed its anger at Mühl’s portrayal of sexual group acts with the cardinal and Mother Theresa. A visitor vandalized the painting the next day, leaving Meischberger’s body and half of his face obscured with red paint. Several Austrian newspapers circulated the story and published accompanying photographs of the painting.
On June 22, 1998, Meischberger instituted proceedings against the applicant pursuant to Section 78 of the Copyright Act, seeking an injunction to stop the exhibition and publication of the painting. He also sought compensation of 20,000 Austrian shillings. Meischberger contended that Mühl’s depictions of him in group sexual activities suggested an “allegedly loose sexual life” [para 13] and discredited his personal and political reputation. He argued that neither the black bars nor the red paint marring the painting prevented him from being recognized, and that the damage to the work had only further publicized the work. An injunction would also prevent the painting from further viewings – such as at upcoming exhibitions in Prague, Budapest and Luxembourg.
On August 6, 1999, the Vienna Commercial Court dismissed the action. The Court found that the painting was akin to a comic strip and was obviously not representative of reality, and therefore could not be considered to have detrimentally impacted Meischberger nor revealed any information about his private life. Although a painting showing Meischberger in such a compromising state could have a demeaning and harmful effect regardless of obviously not representing reality, a balancing of interests had to be undertaken. Weighing the balance between the applicant’s right to freedom of artistic expression and Meischberger’s personal interests, the Court held that the former outweighed the latter due to the exhibition’s celebration of the “artistic spectrum [of the applicant] over the last hundred years” [para 14]. Relevantly, the painting itself was to be understood to be a “kind of counter-attack” [para 15] as it depicted several other figures who had criticized Mühl’s work, and Meischberger’s image was only a small (and now defaced and unrecognizable) part of the painting. Finally, the Court reasoned that an injunction was no longer appropriate given the applicant now intended to close down the exhibition instead of showcasing it at other locations as originally planned.
The Vienna Court of Appeal then overturned the decision in February 2000, and issued an injunction ordering against any further exhibition of the paining and the payment of legal costs and 20,000 Austrian schillings as compensation. The Court found not only that Meischberger’s image was still visible despite the red paint, but also that the limits of artistic freedom had been exceeded when it was unclear if the image was actually intended to be satirical or otherwise exaggerated. The Court held that Mühl’s painting clearly did not fall within the scope of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”) as it was not “intended to be a parable or even an exaggerated criticism conveying a basic message, such as… that Mr Meischberger had disregarded sexual decency and morals” [para 16]. The Court continued that the exhibition could not also be justified under Article 17a of the Basic Law protecting artistic freedom due to the degrading nature of the depiction which clearly injured Meischberger’s personal interests, and that in the absence of an injunction there would be a risk of recurrence.
An appeal subsequently filed by the applicant before the Supreme Court was rejected on July 18, 2000. On March 12, 2001, the applicant lodged an application before the European Court of Human Rights against the Republic of Austria (the defendant), alleging that the decision of the Austrian domestic courts to forbid exhibition of the painting had resulted in a breach of their right to freedom of expression under Article 10 of the Convention.
On April 25, 2007, the Court held by four votes to three that the applicant’s right to freedom of expression under Article 10 of the Convention had been violated. The main issue before the Court was whether the Austrian domestic courts’ interference with the applicant’s right to freedom of expression was necessary and proportionate in a democratic society.
The defendant argued that the injunction did not interfere with the applicant’s rights under Article 10 of the Convention, because the Article only protected of artistic freedom where the artistic work intended contribute to a public discussion of political or cultural matters. The government reasoned that Mühl’s painting featuring public figures in group sexual scenarios could not be considered to be making such a contribution. However, even if the applicant’s rights could be considered to have been interfered with, the interference was lawful and in pursuance of the legitimate aim of protecting the reputation and rights of others. The defendant argued that the Austrian courts’ decision to prohibit the exhibition of the painting was lawful and proportionate, because Meischberger’s personal interests outweighed the applicant’s interests in exhibiting the painting. For example, the exhibition had been at the centre of intense media interest (particularly following the painting’s vandalism), which meant the sexual depiction of Meischberger was known not only be the visitors of the exhibition, but by the wider Austrian public too. The defendant added that it was irrelevant to consider whether Meischberger was a subject of public interest at the time when these events occurred, as the painting could not be considered to form part of a public discussion of general interest, nor could it be seen as relating to Meischberger in his capacity as a public figure. The defendant finally noted that the injunction curtailed only the applicant from exhibiting the painting, and not the behaviour of the artist himself nor his manager.
Conversely, the applicant submitted that the Austrian courts’ interference with their right to freedom of expression was neither necessary nor proportionate, even if allowed under domestic law. Crucially, the applicant argued that the painting’s public exhibition contributed to debate “between the artist, the exhibitor and the public” and thus deserved protection per Article 10 of the Convention. While the Austrian domestic courts had decided that Meischberger’s personal interests were to prevail and be protected pursuant to Section 78 of the Copyright Act, no claim to any such personal interest worth protecting could be established. The applicant substantiated this submission by arguing that the painting was not a factual representation of Meischberger’s actual conduct, nor did it state or suggest so. Rather, the painting was an allegorical representation of Mühl’s personal history, reflective of the artist’s “conception of the interrelation between power and sexuality” [para 24]. Moreover, the image of Meischberger alongside three other freedom Party members was an allegory, given that the Freedom Party had been critical of Mühl’s work and that Meischberger had been a key figure in that political organization. Further, the applicant submitted that Meischberger was interested in discrediting the artist’s work rather than protecting his personal interests, as he had only initiated legal proceedings after the partial damage to the painting and its subsequent media attention. As such, the interference by the domestic courts by way of the injunction was “equivalent to the deletion of the painting from the collective memory” [para 25].
The Court began by restating the importance of freedom of expression as one of the “essential foundations of a democratic society”, even when certain information or ideas publicly expressed may “offend, shock or disturb the state or any section of the population” [para 26]. The Court noted that no democratic society could exist without an artistic exchange of ideas and opinions, nor the demands of “pluralism, tolerance and broadmindedness” [para 26]. Although this artistic freedom under paragraph 1 of Article 10 of the Convention can and should be limited in certain scenarios, that scope is situation and context dependent (Müller and Others v. Switzerland  10737/84).
Legitimate aims and interferences
The Court found that the domestic courts’ decision to grant an injunction forbidding any further exhibition of the painting did constitute interference of the applicant’s right to freedom of expression under Article 10. Firstly, it was incontestable that this interference was prescribed by law under Section 78 of the Copyright Act because the Court had “pursued the legitimate aim of ‘protection of the rights of others’” [para 29] – here, the degrading of Meischberger’s public and personal reputation.
In response to the defendant’s submission that this interference was also aimed to protect public morals, the Court observed that there was no wording within domestic legislation nor any relevant court precedent that the Court could recognise and accept. As such, the Court found that the Austrian courts could have only legitimately pursued the protection of Mesichberger’s individual rights when considering the painting’s prohibition.
Having established that the interference was legally permissible and pursued a legitimate aim, the Court assessed the necessity of the interference. Firstly, the Court observed that while Mühl’s depiction of a naked Meischberger involved in sexual activities was “somewhat outrageous” [para 32], it was obvious to the Court that the painting was neither reflective nor suggestive of reality. Emphasis was placed on the painting’s use of only blown-up newspaper photos of the public figures’ faces, with eyes hidden behind black bars and exaggerated and unrealistic representations of their bodies. Consequently, the artistic portrayal of these figures was clearly a “caricature of the persons concerned using satirical elements” [para 33]. As the work could be classified as satire, the Court stipulated that any interference with an artist’s right to freedom of expression must be carefully examined as “satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” [para 33].
Secondly, drawing on Lingens v. Austria  9815/82, the Court found that the painting could “hardly be understood” to concern any details of his private life – and that Meischberger had to be more tolerant of any criticism of his public standing, given his role as a Freedom Party politician [para 34]. Echoing the domestic court of first instance, the Court observed that the painting could rather be understood to be a “counter-attack” against the Freedom Party, as its members had been scathingly critical of Mühl’s work. Furthermore, the Court emphasized that Meischberger was one of lesser-known and scantly remembered Austrian public figures depicted in the painting, when compared to some of the other 33 figures – such as Mother Theresa [para 35]. Following the vandalization of the painting on June 12, 1998, Meischberger’s depiction was “certainly diminished, if not totally eclipsed” [para 36] by the portrayals of these other more prominent figures.
Finally, the Court noted that the injunction granted in favour of Meischberger was “not limited either in time or in space”, which left the applicant association with no ability to exhibit the painting at any point in the future, regardless of whether Meischberger was still known to the public [para 37].
Having balanced the satirical nature of Mühl’s expression and the implications of the injunction on the applicant with Meischberger’s personal interests, the Court found that the injunction granted by the Austrian domestic courts was disproportionate to the legitimate aim pursued and therefore not necessary in a democratic society. Accordingly, there had been a violation of the applicant’s rights pursuant to Article 10 of the Convention. The Court ordered the defendant to pay pecuniary damages of EUR 12,286.74 and legal costs and expenses.
Dissenting Opinion of Judge Loucaides
Judge Loucaides dissented with the majority by opining that the applicant’s right to freedom of expression pursuant to Article 10 of the Convention had not been violated. Echoing the reasoning of the Austrian domestic courts, he found the painting to undermine Meischberger’s reputation and dignity without a legitimate justification, and that simply classifying a work as an “art” by an artist should not mean that liability for insulting others can be avoided.
Crucially, Mr Loucaides stated that the “nature, meaning and effect” of any image within a painting must not be assessed on what the artist intended to convey – but rather, on what effect the images may have on the observer, intended or otherwise [p. 13]. Further, not every image could be considered artistic merely because it was produced by an artist, and that images could not be classed as being satirical if “the observer does not comprehend or detect any message in the form of a meaningful attack or criticism relating to a particular problem or a person’s conduct” [p. 13].
Mr Loucaides stated that, in his opinion, the painting was neither satirical nor artistic “by any stretch of the imagination” because it depicted unrelated figures in “a vulgar and grotesque” way, and had a “senseless, disgusting” context with the adoption of “repulsive” sexual poses which failed to convey any message other than to “debase, insult and ridicule each and every person portrayed” [p. 13]. He further opined that images which degrade the reputation or dignity of others must be excluded from the legitimate form of artistic expression, in the same way insults have been excluded from free speech – particularly when those images fail to convey any meaningful message.
Joint Dissent of Judges Spielmann and Jebens
In their joint dissent, Judges Spielmann and Jebens voted against finding a violation of Article 10 of the Convention because they disagreed with the majority on the disproportionality of the interference to the legitimate aim pursued in a democratic society. Crucially, the Judges held that “where the ‘protection fo the rights of others’ is at stake, artistic freedom cannot be unlimited” [para 5]. Here, Mühl’s painting did not deserve unfettered protection under Article 10 (even though a State’s margin of appreciation is limited when it comes to artistic freedom) because it interfered so excessively with the dignity and rights of others. Quoting the Court’s past decisions of Pretty v the United Kingdom  2346/02 and Christine Goodwin v the United Kingdom  28957/95, the Judges stated that “the very essence of the Convention is respect for human dignity and human freedom”, and that in this case, Meischberger had found the artwork to be “profoundly humiliating and degrading” [para 9]. Referencing an order of the German Federal Constitutional Court, the Judges stated that in a conflict between human dignity and artistic freedom, personality rights must always prevail, regardless of whether the individual in question is a public figure or not.
Finally, the Judges added that the fact Meischberger’s photograph was used without his consent in the painting was in itself a problematic issue. They noted that the right to own one’s image, in their view, was covered by Article 8 of the Convention because control over an image is a key component of personal development. In their view, this matter was all the more serious in the present case because Meischberger’s photograph had been used without his consent in a rather “shocking” depiction [para 14] and he had not been able to challenge the reproduction of his image.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
When commenting on the pivotal role of freedom of expression in the foundation and progress of a democracy, the Court pertinently noted in this case that this right under the Convention is one naturally extends to offensive ideas and information – even if they may cause great public outrage and concern. Crucially, the Court here implied that it is not for the State to determine the type or content of art which should be protected (Polymenopoulou), but rather that an artist should have the freedom to exhibit their work in all but the strictest of circumstances. Here, the Court expanded expression by concluding that the prohibition on this artwork’s exhibition was disproportionate and unnecessary in a democratic society, because the painting was satirical and clearly not reflective or suggestive of reality. Instead, it should be seen as a satirical form of artistic expression and social commentary, which provokes its audience through exaggeration and distortion of reality [para 33]. Moreover, the Court expanded the right to freedom of expression by reiterating that Meischberger’s needed to have a greater tolerance for criticism given his role as a public official – even if he found the artist’s depiction of him obscene (Fathaigh and Voorhoof).
However, the fact the Court had two strongly dissenting opinions is significant. It shows the deep division on these issues within European legal circles and the lack of a “consistent approach” to, or “shared vocabulary” on, the need for and assessment of specific facts and interpretation of artistic expressions, particularly satirical or humorous ones (Godioli; Brown).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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