Case

In an advertisement for ‘light’ cigarettes, Dr Smith was quoted as saying: ‘Light cigarettes reduce the risk of cancer by up to 50%.’ The doctor's opinion was authentic; he had uttered these words at a scientific conference. But Dr Smith had always been a fierce opponent of smoking in general. Does the doctor have any claim against the tobacco company?

Discussions

Austria

Operative rules

Dr Smith can claim damages for economic and, in the case of gross negligence or intent, non-economic loss.

Descriptive formants

According to prevailing opinion, mentioning someone's name in a commercial is not an arrogation of the name under § 43 ABGB (protection of the name) because the producer of the commercial actually intended the product to be associated with this particular person and so the name is used as a mark of that person in a correct manner. However, another personality right, derived from § 16 together with § 43 and § 1330 ABGB, called the ‘right to not be mentioned by name’ (Recht auf Namensanonymität), is applicable in such a constellation.

By stating a person's name in a commercial, the audience could be under the impression that the name has been made available to the concerned company for such purposes. The right to decide if the name of a person should be used in a commercial has to be strictly reserved to that particular person.

Case

In an interview about environmental protection, Howard, the president of a chemical company, accused the association ‘World Animal Fund’ (WAF) of being a ‘gang of incompetents who were taking advantage of people's credulity and using member contributions for mysterious purposes’. Can the WAF sue Howard for damages?

Discussions

Austria

Operative rules

The legal entity WAF has the legal standing to sue. Compensation would only be awarded for economic loss.

Descriptive formants

The crucial point in this case is the question whether a legal entity can be defamed in the sense of § 1330 ABGB, subs. 1. According to the OGH and to some legal writers, the ‘insultability’ (‘Beleidigungsfähigkeit’), and thus the right of action, stems from § 26 ABGB which sets out that legal persons have the same rights as natural ones. Comparable things should be dealt with comparably; consequently, a legal person unjustly labelled a ‘gang of incompetents’ suffers harm to its reputation since its social standing is tarnished by such an ‘attack’. Korn and Neumayer are the foremost critics of such a right, but fail to state a basis for their opinion.

If, on the other hand, the claim is based on § 1330, subs. 2 ABGB – under which ‘economic reputation’ (reflected in one's creditworthiness, earnings and advancement in profession) is protected against the dissemination of facts which do not correspond to the truth – the standing to sue is not questioned as the business reputation of legal entities must be protected in any event.

Both the introductory essays and the national reports with their accompanying comparative remarks have made it clear that the protection of personality in European private law is a diverse field. The legal bases – constitutions, codes, statutes, case law, codes of conduct – as well as the perimeter of the scope of protection and the remedies are each exhibited very differently. However, the project has shown that there are still commonalities in all of this legal diversity. It must be stressed again that we are not concerned with one (general) personality right or one comprehensive aspect of personality such as privacy. Such expressions merely serve as umbrella terms. They have no specific content; they constitute the parameters of law-making through the courts. Instead, there is an array of personality interests, which have been developed at different times in certain social contexts and which are legally protected nowadays. Their borders cannot be defined exactly. Moreover, their legal treatment can differ within an individual legal system. Due to the limited space available to us, we were unable to include all relevant personality interests in the questionnaire. Yet, within this plurality of legally protected personality interests we display six representative aspects here, and will examine whether and how much there is agreement in respect of their legal protection. The six aspects are: (1) dignity and honour/reputation; (2) privacy; (3) the right to one's image; (4) the commercial appropriation of personality; (5) the right to personal identity; and (6) self-determination.

Case

Sally took a snapshot of person X in a market place without asking this person's permission. Does X have a claim against Sally? Does it make a difference, if:

1. (a) X is famous or not;

2. (b) X is at work/is attending to his private affairs;

3. (c) the picture is published or not.

Discussions

Austria

Operative rules

X is not granted a claim in both situations (a) and (b). If, as suggested under hypothesis (c), the picture is published, X only has a claim for forbearance, publication of the judgment, abatement and restitution of both pecuniary and non-pecuniary loss under certain circumstances. A claim of unjust enrichment, however, appears highly improbable.

Descriptive formants

With regard to situation (a), it appears rather unlikely that X has any remedy against the mere taking of the picture irrespective of whether he is famous or not. The present case deals with the protection of privacy which can, in principle, be realised through the right to image according to § 78 UrhG (Urheberechtsgesetz, Copyright Act). However, this provision only awards a claim if the picture is published; the mere taking of the picture is not sufficient to merit a claim.

Other provisions aimed at preventing the violation of privacy which could be applicable are § 1328a ABGB and § 16 ABGB, together with Art. 8 ECHR.

Case

Bridget was pregnant. She was under the treatment of a doctor who did not inform her that her foetus had a genetic anomaly, which was likely to cause brain damage. Her child was born mentally disabled. If Bridget had known about the anomaly she would have preferred to have undergone a (legal) abortion. Can Bridget sue the doctor for damages for non-economic loss, because he deprived her of the chance to decide whether or not to have the child?

Discussions

Austria

Operative rules

Damages in respect of economic loss (additional maintenance costs), as well as in respect of non-economic loss (shock) could be awarded here. However, Bridget will not be compensated for non-economic harm resulting from the mere loss of autonomy.

Descriptive formants

Under Austrian law it is unclear whether there is a personal right to family planning the infringement of which gives rise to a claim for damages in tort. As far as the rights to self-determination and free will are concerned, claims in tort for compensation are only granted where there is intentional infringement.

In the present case, however, there is a contractual relationship between Bridget and the doctor. The contract of medical treatment means that there is a duty on the doctor to inform the patient of any health risks (to either the mother or the foetus); this is, of course, true with respect to genetic anomalies and risks derived therefrom. Failure to inform, therefore, is a breach of contract.

Case

A popular TV presenter with a very distinctive voice once did a voiceover on some adverts for a coffee company. After he had made it clear that he did not want to do any more of these adverts, the company produced a radio commercial in which his voice had been imitated by another person. Can the TV presenter sue the company for an injunction and compensation?

Discussions

Austria

Operative rules

The presenter can claim for forbearance and for compensation under the law of unjust enrichment. He also might have a claim for noneconomic damages. Economic damages are probably not recoverable in this case.

Descriptive formants

A right to one's own spoken words and to the protection of one's characteristic voice against imitation can be established on the basis of a consideration of other personality rights and constitutional aspects (above all Art. 10 ECHR) and a general weighing of interests, combined with § 16 ABGB.

In 2001, the OLG Wien (Higher Regional Court of Vienna) passed judgment on a similar case, tackling the same problems as the case at hand. The court had to decide whether to issue a preliminary injunction in relation to a radio commercial for a political campaign in which the voices of actors from a well-known television series were imitated. In another decision addressing the same legal dispute, the OGH approved the protection of someone's characteristic voice against exploitation through use in a commercial.

This is the twelfth book in the series The Common Core of European Private Law published within the Cambridge Studies in International and Comparative Law. The project was launched in 1993 under the auspices of the late Professor Rudolf B. Schlesinger.

The methodology used in the project is still unparalleled. By making use of case studies it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and to thorough comparison between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core Project is offering to the scholarly community is already quite extensive and will become even more so when more volumes are published. The availability of materials attempting a genuine analysis of how things are is, in our opinion, a prerequisite for a fully-fledged and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. The analytical work carried on today by the almost 200 scholars involved in the Common Core Project is a precious asset of knowledge and legitimisation for any such normative enterprise.

We must thank the editors and contributors to the already published volumes, and those who are working hard to achieve future results.