Dr. Peter Borbas
Lawyer - Zöchbauer & Partners
Defamation, Privacy and Data Protection
Contributor: Dr. Peter Borbas (Lawyer, Zöchbauer & Partners)
The individual personal rights can be derived from a synopsis of provisions of the ABGB and other laws. The personal rights that are subject to “absolute protection” include, among others, the right to one’s honour (§ 1330 Abs 1 ABGB) and that to economic reputation (§ 1330 Abs 2 ABGB), the right to private and family life (§ 7 MedienG – Media Act; Art 8 ECHR; GDPR) and the right to one’s own picture (§ 78 UrhG – Copyright Act).
The exploration of the limits of the protection of honour requires a consideration of the constitutionally protected fundamental rights. The “good reputation” is covered by the protection of private and family life in the sense of Art 8 of the European Convention on Human Rights (ECHR). This must be balance against the fundamental right to freedom of expression as protected by Art 10 ECHR.
1.1. § 1330 ABGB
In accordance with § 1330 para 1 ABGB anyone who has sustained actual harm or loss of profit owing to an injury to his honour is to be entitled to claim compensation. Under § 1330 para 2 ABGB the same is to apply when a person reports facts prejudicial to the reputation, material situation and future prospects of a third party which he knew or ought to have known to be inaccurate.
A person concerned can defend himself against objectively untruthful and insulting allegations as well as other denigrations or insults by means of a cease and desist complaint. Furthermore, one can request the deletion or take down of the offending material, the retraction of the false allegation, publication of the retraction, and payment of compensation. A claim for an injunction can also be made by way of an accelerated (application for a preliminary injunction).
1.2. Libel – §1330 para 1 ABGB
An insult to one’s honour is covered by § 1330 para 1 ABGB and means an attack on human dignity, for example through mockery or insults. The publication of such allegation to at least one person different from the perpetrator and the injured person fulfils the publicity requirement, whereby mere perceptibility is sufficient.
In the balancing of interests the freedom of information and opinion (Art 10 ECHR) might outweigh the right to honour if the limits of admissible criticism are not exceeded and there is no disproportionate excess of evaluation. Appropriate criticism is generally permissible. Politicians, journalists or publishers that provoke criticism must allow themselves to be ascribed a higher degree of tolerance towards the criticism of the political opponent under attack.
1.3 Defamation of business reputation – § 1330 para 2 ABGB
§ 1330 para 2 ABGB prohibits the dissemination of incorrect allegations as to facts that jeopardise someone’s business reputation, income or economic progress. Facts are circumstances, events or properties with a tangible content that is recognizable to the public and can be checked for correctness by the public. Value judgments in § 1330 para 1 ABGB, on the other hand, are only obtained because of a thought activity and reflect a purely subjective opinion of the person making the declaration. For the delimitation it is therefore crucial whether a statement contains a derogatory factual assertion that is accessible to an objective review. A statement which contains a derogatory factual assertion, even indirectly, and which can be objectively verified is not a value judgment.
2.1. Private prosecution
The Austrian Criminal Code (Strafgesetzbuch, StGB) contains a number of offences that are not prosecuted by a public prosecutor, but by the victim himself as “private prosecutor”. These include offences such as defamation (§ 111 StGB) and insult (§ 115 StGB). In such proceedings, the victim or his legal representative takes on the role of the prosecutor. Private prosecution proceedings start once the person affected presses charges against the offender; there are no preliminary proceedings.
2.2. Defamation – § 111 StGB
The offence under §111 StGB is fulfilled by anyone who denounces another person with a contemptible quality or conviction or accuses them of dishonorable behaviour or behaviour that is offensive to good morals, which is likely to make them contemptible in public opinion and in such a way that that it can be perceived by a third party.
An offence is only characterised when, in addition to the offended person, at least one third party was able to perceive, and became aware of the defamation. The criminal liability does not apply if the perpetrator can demonstrate that the allegation is true or substantially true.
The penalty for defamation is up to six months’ imprisonment or, alternatively, a fine. Anyone who commits the act in a print, on the radio or in any other way, whereby the defamation becomes accessible to a broad public, is liable to imprisonment of up to one year.
2.3. Insult – § 115 StGB
The offence of insult is committed by anyone who insults, mocks, abuses or threatens another person with physical abuse in public or in front of several people. If the offence is subject to a more severe punishment deriving from another applicable legal provision, the punishment for insults is imprisonment for up to three months or a fine.
2.4. Proceedings under the Media Act
The criminal courts are also responsible for proceedings under the Media Act.
2.4.1. Claims for compensation under media law based on § 6 MedienG (Defamation, libel, slander, insult and ridicule)
With this application a natural person can claim compensation for the offence suffered where the objective fact of defamation, abuse, ridicule or slander is established in any form of publication of information or representations of thoughts, whether through written words, sounds or images, to a major audience by means of mass production or mass publication. It must be proved that the person concerned is affected by the publication or broadcast and that it had actual negative effects. If a compensation amount is awarded, the scope and impact of the publication, in particular the type and extent of the distribution of the medium, must be taken into account. The amount of compensation does not generally exceed EUR 40,000. A defendant media entity can invoke grounds for exclusion. These grounds for exclusion would lead, if the court came to the conclusion that they existed, that there was no entitlement to any compensation. Grounds for exclusion are proof of truth, observance of journalistic diligence or truthful reproduction of the statement of a third party if the public is predominantly interested in knowing the quoted statement.
2.4.2. The Right to reply
The Right to reply (“Gegendarstellung”) is also regulated in the Media Act (§§ 9 ff MedienG). In proceedings requesting such relief, the applicant has the rights of the plaintiff in a private prosecution, the opponent those of the defendant.
A natural or legal person not only generally affected by facts published in a medium is entitled to request publication of a reply in such medium. A reply shall state in a concise manner that – and to what extent – the information is incorrect or incomplete and explain the reason for that.
The first step is to address a request for publication of a reply, which must be addressed in writing to the media owner or to the editor’s office of the media that published the offending statement. If the reply is not published duly or not at all, the person affected may within a six-week period file a request in court against the media owner as opponent, for an order of the court that the defendant publishes the reply.
The protection of privacy is – as mentioned above – largely safeguarded by § 16 ABGB. Protection is extended by the special provisions of the Media Act (MedienG), such as § 6 (see above), § 7 (Violation of the most personal area of life), § 7a (Protection against publication of the identity in special cases), § 7b (Protection of the presumption of innocence) and § 7c (Protection against unauthorised publication). As a result, media owners must compensate those affected for the offences they have suffered. A person affected can file his claim for an indemnity under § 6, § 7, § 7a, § 7b or § 7c MedienG in the course of the criminal proceedings in which the media owner is involved as defendant.
A provision related to § 16 ABGB is § 43 ABGB: If someone’s right to use their name is disputed or if they are impaired by the unauthorised use of their name (alias), they can issue a claim an injunction and, if they are successful, claim damages.
Pursuant to § 78 UrhG images representing a person must not be displayed publicly or disseminated in another way that makes them accessible to the public if such publication or dissemination harms the legitimate interests of the person concerned. Infringements of an individual’s image rights can also be fought with an action for injunctive relief and damages can be claimed in the event that the infringement is characterised.
Civil claims based on libel must be brought within a period of one year (§ 1490 Abs 1 ABGB), while other civil claims generally must be brought within a period of three years (§ 1489 ABGB).
In criminal law the limitation period is three years if the act is punishable by a prison sentence of more than six months, but no more than one year. This is shortened to one year if the act punishable by no more than six months’ imprisonment or only with a fine.
An application for compensation under media law must be submitted to the competent criminal court within a period of six months after the initial distribution, broadcast, or retrieval on which the claim is based, in accordance with § 8a para 2 MedienG.
Depending on the facts of the case, including in particular the amount claimed in civil cases or the type of offense in criminal cases, and whether the case falls within the jurisdiction of either a District Court (Bezirksgericht) or a Regional Court (Landesgericht) in the first instance.
If the first instance court is a District Court, decisions are taken by a single judge. The District Courts have jurisdiction in civil lawsuits where the value does not exceed EUR 15,000 and in cases that have been assigned to them by law. In most cases, decisions of Regional Courts are also taken by a single judge. In criminal law matters District Courts have jurisdiction on all offences that are liable to a fine or a prison sentence that does not exceed one year. Contrary to the position in relation to civil claims, the composition of the Regional Court in criminal matters differs according to the nature of the proceedings and the possible penalty. It may be constituted as a “Schöffengericht” with two professional and two lay judges, or a “Geschworenengericht” with three professional judges and a jury of eight people. Regional Courts decide in all cases that are not assigned to the District Courts.
Appeals panels are composed of three judges. In civil law where the case was initially brought before a District Court, an appeal must be made to a Regional Court. Where a Regional Court dealt with the decision at first instance, decisions must be appealed before a Higher Regional Court (Oberlandesgericht- OLG). The four Higher Regional Courts are in Vienna, Linz, Graz and Innsbruck. In criminal law the Higher Regional Courts are always the courts of second instance.
The Supreme Court (Oberster Gerichtshof – OGH) is the highest court in civil and criminal cases. In most cases, panels have five members. The main function of the Supreme court is to ensure legal certainty and uniformity in decision-making. Although its judgements are not regarded as precedents formally binding the lower courts, the Supreme Court’s authority provides clarity on the application of the law, which is an essential safeguard for citizens.
Court fees are calculated as a percentage of the value of the dispute. They are payable by the plaintiff at the beginning of proceedings or the applicant when filing an appeal. Costs are awarded to the successful party for their actual expenses. But the costs awarded are based on the official tariff (Rechtsanwaltstarifgesetz – RATG) and may therefore be lower than a party’s actual expenses.
The EU General Data Protection Regulation (GDPR) is the foundation of data protection law. The Austrian Data Protection Act (Datenschutzgesetz, DSG) supplements the GDPR and was extensively modified when the GDPR came into force. In addition to the GDPR, the DSG is the central piece of legislation in Austria regulating data privacy. Notwithstanding its title, the DSG – to a certain extent – also protects the personal data of legal persons. That is why legal persons as well as natural persons can invoke a basic right to data protection.
The Austrian Data Protection Authority (Datenschutzbehörde – DSB) is the national supervisory authority for data protection in the Republic of Austria. It is an independent governmental authority charged with data protection. The DSB is the Austrian equivalent of a national data protection commissioner in other countries.
Contributor: Dr. Peter Borbas (Lawyer)
Zöchbauer & Partner Attorneys at Law
1040 Vienna, Karlsgasse 15
The material in this Guide is for general information only and does not constitute legal advice.
SEE MORE INTERNATIONAL MEDIA LAW GUIDES