Case

A detailed report containing the names and photographs of several paedophiles convicted by criminal courts is published in a high-circulation magazine. One of the paedophiles, Larry, was convicted three years ago. He was released from prison a week after the publication of the list.

Can Larry sue for damages?

Discussions

Austria

Operative rules

Larry's claim for damages will probably fail under Austrian Law.

Descriptive formants

If a general right to remain anonymous under § 7a MedienG (see Case 1) were acknowledged, this would conflict with the media's duty of ‘warning and protecting’ as a particular element of the ‘watchdog’ function of media, as is emphasised by some scholars and courts in Austria.

This is particularly true in cases of sexual offences involving children. Here, the interests of not only the parents but also of the public in protecting children against the long-lasting and severe consequences of sexual abuse clearly prevail over the interest of the convicted criminal to be reincorporated into society.

The Higher Regional Court of Graz, for example, held that a paedophile who was sentenced to 15 months in jail had no right to remain anonymous when released from prison. The public interest in warning and protecting potential future victims must be considered higher than the interests of the paedophile.

Applying these rules to our case, there is no chance either for Larry's claim for an injunction (§ 381 EO) or for a claim in damages pursuant to § 7a MedienG.