Radio ABC v. Austria

20 October 1997, Application No. 19736/92 (European Court of Human Rights)

Theme:	Media regulation: general issues; broadcast regulation
Sub-Issues:	Concentration of ownership; private broadcasting
Test:	necessity
Penalty:
Decision:	violation of freedom of expression; unanimous
Jurisdiction	European Court of Human Rights: Austria

 

Facts:

The respondent State in 1993 passed legislation governing the licensing of local and regional radio stations. Before 1993, the Austrian Broadcasting Corporation, an autonomous public law corporation, was the only broadcast organisation allowed by law. In 1995, the Austrian Constitutional Court declared the 1993 Act to be unconstitutional because it indicated with insufficient clarity the criteria for the allocation of licences. The applicant was a not-for-profit organisation who first applied for a radio licence in 1989; this application was refused. In 1994, following the enactment of new legislation, the applicant lodged an application to be granted one of two radio frequencies that were available for the Vienna region. This application was also refused. The applicant lodged a complaint with the Constitutional Court who declared the legislation unconstitutional on other grounds. The case had already been referred to the European Commission of Human Rights in 1992, following the first refusal.

Held:

Necessity
The Austrian licensing system constituted an interference with the right to free expression. Because of the importance of the right in question, supervision must be strict and the necessity for the interference must be convincingly established.

The 1993 Act was introduced to remedy the system whereby the Austrian Broadcasting Corporation effectively operated a state monopoly, which had been found in breach of the right to freedom of expression in the case of Informationsverein Lentia and others v. Austria (European Court of Human Rights, Judgment of 28 October 1993). The Court expressed surprise that under the 1993 Act, only two broadcast frequencies were available for the Vienna region: such a restriction could not be justified on purely technical grounds such as the availability of broadcast frequencies. However, since the 1993 Act had been declared null and void by the Austrian Constitutional Court, the European Court was no longer required to rule on this issue. The effect of the 1993 Act being declared void was to re-instate the pre-1993 legal situation, which had already been found in the Lentia case to be unnecessarily restrictive. The Court therefore found a violation of the right to freedom of expression.

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