Case

In a satirical magazine, the Prime Minister of a nation is caricatured in a cartoon as a pig copulating with another pig depicted as a judge. Does the Prime Minister have any claim against the magazine?

Discussions

Austria

Operative rules

The Prime Minister will probably not have any claim.

Descriptive formants

‘Making a fool of somebody’ is the target of satirical art. Therefore, the right to freedom of art (Art. 17a StGG) could be infringed if the Prime Minister was entitled to sue the magazine.

To find the borderline between lawful and unlawful intrusions, Austrian courts first separate the factual core message of a caricature from the satirical presentation and check whether this factual message is likely to damage the honour or dignity of the person targeted.

Second, the courts look at the satirical presentation itself. Any distortion and exaggeration which is part of the caricature is not measured very strictly or in a narrowminded fashion. The constitutional right to freedom of art may only be restricted if the essence of human honour and dignity is affected. Therefore, satirical cartoons enjoy a wider sphere of freedom compared to other pictures.

In 1992, the OGH held that the satirical presentation of the editor-in-chief of a newspaper as a pig with the description ‘pig, open to doing everything’ was allowed, after his newspaper had falsely described a woman suspected of murder as a ‘secret prostitute’ and as a ‘pig who is open to doing everything’.

‘Personality rights’ is not an obvious topic of comparative legal research. One may argue that the title of this volume reveals a typically continental European approach to the legal protection of personality interests. Is this terminological choice really compatible with the commitment of the Common Core project to a factual, bottom-up approach and with the requirement of equal treatment of different legal cultures, which should inspire every high-quality comparative law exercise? We maintain that it is for at least three reasons.

First of all, the rights-based approach in legal matters such as privacy and self-determination has become a truly common European feature through the European Convention on Human Rights (ECHR), the jurisprudence of the European Court of Human Rights (ECtHR) and the established case law of the European Court of Justice (ECJ) on Community fundamental rights, which are already in force as general principles of EC law.

Secondly, legal history shows that the recognition of a ‘new’ human interest as a ‘right’ always requires a lengthy period of time and intense debates in every legal system. This is a recurring pattern in the history of personality protection in continental Europe, like in other parts of Europe and in the United States.

Thirdly, it is of great interest for comparative lawyers committed to the Common Core methodology to see how the same human interests which qualify as ‘rights’ in some legal systems are protected in the legal systems which do not recognise this qualification.

Case

A law professor was convicted by a court of having committed a crime. The day after the judgment, the case was published in a newspaper mentioning the professor's name. Does he have any claim against the newspaper? Distinguish the following two situations:

1. (a) The crime consists of causing the death of a person in a car accident due to drunken driving.

2. (b) The crime consists of promising female students better grades in exchange for sex.

Discussions

Austria

Operative rules

In both situations, the law professor does not have a claim against the owner/publisher of the newspaper.

Descriptive formants

§ 7a MedienG provides for a personal right to remain anonymous under certain conditions. This right conflicts with the right of freedom of the press and information (Art. 10 ECHR). Therefore, it is necessary that a claimant has good reasons for claiming compensation under § 7a MedienG.

Under § 7a MedienG, persons who are suspected of having committed a crime or on whom sentence has already been passed may sue the owner/publisher of the newspaper who disclosed their identity for compensation of non-economic loss, if:

1. (1) there is a sustained infringement of their protected interests through the disclosure of their identity; and

2. (2) there is no prevailing public interest stemming from the position of the claimant in public life or from another comparable connection with public life.

Comparative legal studies performed by a large network of academics from many different countries usually require many years of work and indeed a great deal of patience from all persons involved. This book, like most volumes of the Common Core series, is no exception to this rule. A first draft questionnaire on civil liability for the violation of personality rights was presented by Gert Brüggemeier and Aurelia Colombi Ciacchi and discussed in Trento in 2001. After settling on the final version of the questionnaire, first draft country reports were completed between 2002 and 2004. In August 2004, Patrick O'Callaghan joined the editors' team. Draft comparative remarks and an introductory chapter were written in 2005–06. Then the last missing country reports were drafted and the review of the other reports and the drawing of our conclusions for this project continued until early 2007, followed by final editing and proofreading until 2008.

We would like to express our deepest thanks to all national reporters and contributors for their enthusiasm and long-term commitment to this project, which did not provide any other remuneration but for the publication itself and the enjoyment of wonderful meetings in both Trento and Turin.

We are grateful to the general editors of the Common Core project, Mauro Bussani and Ugo Mattei, for their constant support. An enormous thank you to the chairs of the Tort session of the Common Core project, Mathias Reimann (until 2002) and Franz Werro (since 2003), and all participants to the annual meetings of the Tort sessions for their valuable comments and suggestions.

Case

For advertising purposes, an electronics company used a photograph of a famous tennis player, depicted in action during a tournament match. This photograph was well-known, as it had appeared in the press some years earlier. In the advert, just three words (‘Energy’, ‘Power’, ‘Speed’) and the name of the company were written underneath the photograph.

1. (a) Can the tennis player, who had not authorised this advert, sue the company for injunction and compensation?

2. (b) Do the damages include skimming off the profits earned by the company through their use of the photograph?

3. (c) What would be the result if the famous tennis player had died prior to the publication but he has a surviving spouse and child?

Discussions

Austria

Operative rules

The tennis player can bring an action for forbearance, abatement and for publication of the judgment. However, he is not entitled to claim compensation for his economic and non-economic loss. He can also obtain a hypothetical licence fee under the law of unjust enrichment.

If the close relatives are the trustees of the deceased tennis player they can bring an action in his name under the law of unjust enrichment.

Descriptive formants

Can the tennis player, who had not authorised this advert, sue the company for injunction and compensation?

Even if the illustrated person is well-known, his right to image (§ 78 UrhG) can be injured.

Most of the following country reports were completed in 2007 but for reasons of the work schedule we were unable to make major updates to the reports before publication. Naturally, there have been developments since 2007, some of a relatively minor nature and some which are clearly quite significant. In England, while Campbell v. MGN remains the leading authority for the fledgling informational privacy tort, there have been some decisions of the lower courts, which should be mentioned here, namely McKennitt v. Ash, Murray v. Express Newspapers plc and Mosley v. News Group Newspapers Ltd. In Germany, as set out in Case 7, courts and scholars traditionally regarded pictures of public figures as pictures of contemporary history. But the German reporters inform us that the legal landscape has changed following the decision of the European Court of Human Rights in von Hannover. Courts in Germany now allow publication of pictures of public figures only when they are deemed newsworthy. The newsworthiness may be due to the fact that the person is depicted in an official function or if there is a story to the photo which is of public interest. The public interest may also follow from a text added to the photo.

Case

During a municipal authority committee meeting which was open to the public and concerned the widening of a public road, Maria, a member of the public, secretly recorded the discussion. Maria was the tenant of a house on the road in question and was, like most of her neighbours, opposed to the widening project. At the end of the sitting, committee members noticed that Maria had recorded the discussion and they wanted her to hand over the tape. Maria refused. Do the committee members have any claim against Maria?

Discussions

Austria

Operative rules

The participants of the meeting can claim for abatement and forbearance.

Descriptive formants

The right to one's own spoken words is derived from § 16 ABGB and can be invoked in relation to the values underlying different provisions of the Austrian legal order. § 120 StGB (‘misuse of sound recorders or listening devices’) can be considered, however it is too restricted on its own.

The secret recording of a private conversation is unlawful. If a public conversation is involved, in Posch's opinion there could only be an infringement of a personality right if there is an untrue, an abridged or a manipulated quotation.

The crucial point in this case is whether the secret recording of the discussion at the committee meeting should be allowed considering that there was public access to the meeting. According to the OGH, the right to one's own spoken words includes the speaker's autonomy to decide if his/her voice should be taped by a recording machine.

Case

Jonathan, a house owner, found some diaries in his attic belonging to Brigitte who had been living there twenty years before. Jonathan became the owner of the books and published the diaries. Does Brigitte have any claim against Jonathan? Would it make a difference if Jonathan made some effort to contact Brigitte before the publication?

Discussions

Austria

Operative rules

If Brigitte's legitimate interests are injured by the publication, she can request forbearance and publication of the judgment. Apart from this, she can recover damages for economic and non-economic loss.

Descriptive formants

It is irrelevant that Jonathan became the owner of the diaries. The property right according to § 354 ABGB has to be strictly segregated from copyright and personality rights.

If the diaries can be seen as a specific intellectual creation in terms of § 1 UrhG, Brigitte obtains protection as an author. Indeed, this would not make a big difference, since, generally speaking, the legal consequences for infringements of her copyright are the same as for violations of § 77 UrhG.

As already mentioned in Case 12, the protection of diaries, letters and similar confidential records under civil law is anchored in § 77 UrhG, which only prohibits the dissemination of such records if the ‘legitimate interests of the writer are injured’ (the field of these interests includes, inter alia, facts from private life). Brigitte can only take legal measures if this precondition is fulfilled.

Case

A newspaper published an article accusing a well-known politician (called by name) of being corrupt. Does the politician have any claim against the journalist, the publisher or the editor-in-chief of the newspaper? If the politician was informed beforehand about the forthcoming article, is he entitled by law to stop the publication? Distinguish the following situations:

1. (a) The journalist's statement is not supported by any facts.

2. (b) The journalist alleged some facts related by a third person, which then turned out to be false.

Discussions

Austria

Operative rules

The politician may apply for a preliminary injunction to stop the publication. In situation (a), the politician has a claim against the journalist for the forbearance of defamatory statements, the revocation of the false statement and its publication, and for compensation of pecuniary loss. The politician may sue the publisher for compensation of non-pecuniary loss. In addition, the politician can claim for a right of reply. In contrast, the politician probably has no claim under situation (b), but this depends on several conditions.

Descriptive formants

If the politician was informed beforehand about the forthcoming article, he may apply for a preliminary injunction pursuant to § 381 EO if ‘such an injunction seems to be necessary for the avoidance of … an unrestitutable damage’. Under this provision, only objective endangerment (objektive Gefährdung) is required. After an ordinary hearing the injunction may be removed.

Case

With a strong telephoto lens, a paparazzo took a photograph of a famous princess, sitting in the garden of her private villa together with her new lover and her little son. The picture was published on the cover of a tabloid, under the heading: ‘The Princess' New Family’.

1. (a) Can the princess skim off the profits that the magazine earned due to the publication of her photograph? If yes, is the magazine under a duty to disclose the necessary information?

2. (b) Would it make a difference if the princess was not sitting at home, but in the back garden of a countryside restaurant?

Discussions

Austria

Operative rules

Taking a photograph with a strong telephoto lens could qualify as an intrusion into the princess' right to privacy and intimacy, which may entitle the princess to sue the paparazzo for the forbearance of the further taking of photographs, destruction of the negatives and compensation of damage. She may also sue the owner/publisher of the magazine for damages, but this will not include skimming off the magazine's profit.

Descriptive formants

The OGH pointed out in the ‘Vranitzky case’ that even public figures have a right to privacy and intimacy. The princess sitting in the garden of her private villa (situation (a)) or in the back garden of a countryside restaurant (situation (b)) with her new lover and her little son are both private acts.

Introduction

‘Personality Rights in European Tort Law’: What exactly are we talking about here? Both the term personality right and the term European tort law are misleading and need clarification right from the outset.

There is actually no such thing as ‘European tort law’. The ‘pigeonhole’ approach of individual torts is a particularity of the common law tradition, which finds no counterpart in the civil law. The term ‘law of delict’ is well-established with regard to the civil law systems, which claim ‘non-contractual liability for damage caused to another’, based on the general principle of neminem laedere.

As for the notion of ‘personality right’, in modern civil law there are two clear-cut notions of ‘rights’: public law recognises fundamental rights, be they classic human rights declaring the freedom of citizens from state intervention or be they social or economic rights requesting assistance and performances for citizens from public authorities. These are ‘innate’ and inalienable rights of human beings as such or of the citizens of the respective political entity, and are mostly enshrined in written constitutions. Private law provides for subjective rights: (absolute) property rights in corporeal things or intellectual achievements and (relational) obligations (Forderungen), e.g. a creditor's right to claim money from a debtor. These subjective rights are, by definition, alienable, heritable and of monetary value. They constitute the assets of a person. Civil personality rights do not fit into this dichotomy.

Case

Susan and Robert sold a photograph of their four-year-old daughter Lily, running naked on the beach, to a sun cream manufacturer. The photograph appeared in several magazines as part of an advertisement for the products of that firm. Kevin scanned the photograph and put it on the internet, on a site called ‘naked.little.girl.com’. Can Lily claim damages from Kevin? Is the internet provider liable?

Discussions

Austria

Operative rules

Lily has a claim against Kevin for the forbearance of future publication of her picture on the internet, abatement, publication of the courts findings and for compensation, as well as for a preliminary injunction. In respect of the access and host provider, Lily cannot sue for damages but has a claim for injunction.

Descriptive formants

The right to image (§ 78 UrhG; see Case 7) is not just restricted to adults but also applies to children.

The consent of both Susan and Robert as Lily's parents refers only to the publication of the naked photograph in magazines as an advertisement for certain suncare products. There seems to be nothing sinister about this type of publication. However, advertising a naked four-year-old girl on a website called ‘naked.little.girl.com’ appears to have a more sinister connotation. As far as the parents' consent (on Lily's behalf) is concerned, they have only given their consent for the publication of the photograph in a certain medium (magazines).

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.

Case

A well-known author published a successful novel. Its protagonist was a man, depicted as opportunistic, cynical and corrupt, with wicked sexual habits. The detailed description of his life, career, etc. corresponded perfectly to a real person – the famous actor X. However, the essential negative features and actions attributed to the character in the novel did not match X, they were invented by the author. The novelist himself stressed at various occasions that he just wanted to create the perfect, typical figure of a deceitful intellectual. Moreover, on the last page of the novel he wrote: ‘All persons in this book represent types, not portraits.’

Does the actor X have any claim against the author of the book?

Discussions

Austria

Operative rules

The actor X does not have a claim against the author of the book under Austrian law.

Descriptive formants

To solve the problem of a so-called ‘roman à clef’, Austrian courts and scholars apply a flexible system of arguments around which clusters of cases are established which have something in common. This flexible system is governed by the rule ‘the higher the artistic value, the broader the artist's freedom of expression’.

In the first cluster of cases tortious conduct is present, which is only garnished with some artistic behaviour. Here, the author is using literature as a ‘weapon’. Since the minimum requirements of art are not met, the author cannot rely on the right of freedom of art.