Austria

 CountryType of Law 
 
 

Criminal Defamation

Defamation remains a criminal offence in Austria (punishable with imprisonment).

The Austrian Criminal Code (Strafgesetzbuch) foresees the following offences:

Defamation (üble Nachrede, Art. 111): Accusing someone of a disreputable characteristic or disposition, dishonourable behaviour or of a behaviour offensive to good morals that may denigrate that person or bring him/her into disrepute in the eyes of the public. The penalty is six months in prison or a fine of 360 times the daily rate. For defamation committed through print, broadcasting “or by any other means by which the defamatory content is made accessible to a wider public”, the possible penalty is up to one year in prison and a fine of up to 760 times the daily rate.

Insult (Beleidigung, Art. 115): Insulting, ridiculing, physically mistreating, or threatening a person with physical mistreatment before at least three other individuals. The penalty is up to three months in prison or a fine of up to 180 times the daily rate.

Slander (Verleumdung, Art. 297): Falsely and knowingly accusing another person of a criminal offence of the failure to fulfil an official duty in such a way that puts the person in danger of criminal prosecution. The penalty is up to one year in prison or a fine of up to 720 times the daily rate. However, if the accusation relates to a criminal act that is punishable by over a year in prison, the penalty is imprisonment from six months to five years.

Criminal Defamation of Public Officials

No provisions.

Note, however, that certain public officials have a procedural advantage in criminal defamation cases. Art. 117 of the Austrian Criminal Code states that defamation or insult committed against civil servants, the Austrian President, and ministers of nationally recognised churches or religious communities is to be prosecuted ex officio. The same rule applies to insult committed against individuals on account of their “religion or worldview” as well as on account of characteristics such as race and ethnic origin.

Criminal Defamation of the Head of State

No provisions.

However, the Austrian President has a procedural advantage in criminal defamation cases. See above under “Criminal defamation of public officials”.

Criminal Defamation of the State and its Symbols

Publicly and in a hateful manner insulting or disparaging the Republic of Austria or one of its federal states is a criminal offence under Art. 248(1) of the Austrian Criminal Code. The penalty is up to one year in prison or a fine of up 720 times the daily rate.

Insulting or disparaging the Austrian federal flag or an Austrian state flag as displayed at an official or public event, or a national emblem or the national or state anthems is an offence under Art. 248(2). The penalty is up to six months in prison or a fine of up to 360 times the daily rate.

Additionally, Art. 116 of the Criminal Code provides that criminal provisions on defamation and insult also apply to expressions directed at the national or state parliaments, the armed forces or a government office.

Criminal Defamation of Foreign Heads of State

No provisions.

Criminal Defamation of Foreign States and Symbols

Insulting, disparaging or otherwise denigrating the flag or symbol of a foreign state or of an intergovernmental body is an offence under Criminal Code Art. 317. The penalty is up to six months in prison or a fine of up to 360 times the daily rate.

Criminal Defamation of the Deceased

No provisions.

Criminal Blasphemy

Ridiculing or denigrating a religious doctrine, a religious custom or a person or object that constitutes an object of worship by a nationally recognised church or religious community is an offence under Art. 188 if the act may cause “justified indignation”. The penalty is imprisonment for up to six months or a fine of up to 360 times the daily rate.

Criminal Procedure

Defamation and insult are generally prosecuted privately. However, Art. 117 of the Austrian Criminal Code states that defamation or insult committed against civil servants, the Austrian President, and ministers of nationally recognised churches or religious communities, is to be prosecuted ex officio. The same rule applies to insult committed against individuals on account of their “religion or worldview” as well as on account of characteristics such as race and ethnic origin.

Selected Criminal Cases Involving Media

Criminal prosecutions for defamation or insult are unusual, but not obsolete. In 2001, a well-known satirical columnist, Rainer Nikowitz, of the weekly magazine Profil was convicted of having criminally defamed the skier Stefan Eberharter. Nikowitz was sentenced to a pay a total fine of 20,000 Austrian schillings (approx. €1,450). In 2007, the European Court of Human Rights found a violation of Art. 10, noting (par. 27) :

“Moreover, the Court, having regard to the fact that the Austrian courts convicted the first applicant of defamation and ordered the applicant company to pay compensation and to publish the judgment, cannot adhere to the Government’s argument that the Austrian courts showed moderation in interfering with the applicants’ rights in the present case. In particular, as regards the first applicant, what matters is not that he was sentenced to a relatively minor suspended penalty, but that he was convicted at all (see Lopez Gomez da Silva, cited above, § 36).”

Statistics on Criminal Law Application

The following are official data on criminal convictions for the year 2013 from the Austrian Statistics Agency (Statistik Austria).

• For Art. 111 (defamation), there were 23 convictions, resulting in six prison sentences and 18 fines.
• For Art. 115 (insult), there were 35 convictions, resulting in 17 prison sentences and 25 fines.
• For Art. 297 (slander), there were 320 convictions, resulting in 220 prison sentences and 64 fines.
• For Art. 248 (denigration of the state and its symbols), there were 0 convictions.
• For Art. 317 (denigration of a foreign state and its symbols), there were 0 convictions.
• For Art. 188 (blasphemy), there were 0 convictions.

The most recent year for which statistics are publicly available is 2015. However, detailed results per article of the Criminal Code are not provided. However, statistics indicate that there 42 convictions for Arts. 111 to 117 (defamation and insult) in 2015. Official statistics also offer an overview of the development of criminal justice regarding defamation insult through time. In the year 1975, there were 344 convictions for Arts. 111 – 117. In 1985, 298; in 1995, 169; in 2005, 77. The overall trend clearly shows a decline in convictions.

Civil Defamation

In Austria, claims for civil damages related to a loss of honour can be pursued under: (1) the Media Law (Mediengesetz), which provides that victims of defamation, insult, or slander committed through the media have the right to sue for non-pecuniary damages; and (2) the General Civil Code (Allgemeines Bürgerliches Gesetzbuch), which provides allows claimants to sue for compensation in the case of: (a) insult to honour (Ehrenbeleidigung) that causes actual damage or a loss of income; and (b) the publication of purportedly factual reports that were false or that the journalist (or other defendant) should have known were false and that damage the credit, acquisitional capacity, or advancement of another.

Damages

The Civil Code only allows for strictly compensatory damages. There are no caps to this.

The Media Law only allows for immaterial damages for suffering. These are capped at €20,000, or €50,000 for slander or particularly harmful defamation. The amount is determined based on type and reach of the media in question, the magnitude of the effect caused by the defamatory statement, and the financial circumstances of the media owner (Art. 6).

Defences

For the awarding of immaterial damages under the Media Law, the following defences are explicitly provided:

Truth: Damages are not possible if the statement was true; when involving a person’s private life, there must, however, be a direction connection to public life (Art. 6.2.2.a)

Public interest: Damages are not possible if the publication was made in light of overriding public interest as long as the media, employing proper journalistic duty, had good grounds to believe the accusation true (Art. 6.2.2.b)

Privileged Reporting: No damages can be awarded for faithful reports of public sittings of the Federal or state parliaments or committees thereof (Art. 6.2.1). The media are also not liable for damages for faithfully reproducing the statement of a third person as long as an overriding public interest in hearing the statement exists ( Art. 6.3a). Nor are the media liable for defamatory content transmitted via live radio or television programming or for content on third-party websites as long as proper journalistic duty has been observed.

Other defences, such as honest opinion, have been recognised in case law.

For the Civil Code, provision (a), relates to insult as opposed to defamatory accusation, and is therefore not subject to a defence of truth. However, public interest may be considered.

For provision (b), the defendant can only be liable for damages if the report was false or if he ought to have known (i.e., via journalistic duty) that the report was false (i.e. the journalist must have acted at least slightly negligently).

Media Liability

Only the media owner is liable for damages under the Media Law. However, in certain situations the media owner can recover some of the damages from the journalist responsible for the offending content. An individual journalist can attract liability under the General Civil Code, and can also be prosecuted under criminal law.

General Case Law

Notes on case law

According to Austrian legal experts, the Austrian Supreme Court (Oberste Gerichtshof) generally – and increasingly – applies European Court of Human Rights (ECtHR) case law, particularly as this relates to the press and matters of public interest.

Separation of fact and value The Supreme Court, following the EctHR, distinguishes between accusations of fact and value judgments. In the Court’s , a “preliminary question” for all matters of defamation is “whether a publication can be seen as a value judgement, in which case proof of truth is a priori excluded, or as essentially an assertion of fact, whose correctness is in principle objective and subject to a inquiry of truth”.

Defence of justification The Supreme Court has clearly differentiated between unambiguous claims of fact (Tatvorwurf) on one side and a report on a suspected fact (Tatverdacht). to the Court, in the latter case proof of truth may be accepted as long as “the assertion can be shown to be true in its essential aspect or in its ‘core’ [im Kern]”. For matters of public interest, this standard is set to a low bar. The Supreme Court has ruled: “In the case of a media report in which a person in public life is accused of a criminal offence committed in relation to his [public] function, the demand for the underlying kernel of truth cannot be particularly high.”

Meaning of an expression to the Supreme Court, a defamatory statement is one in which one’s social standing is damaged according to the “average [common] understanding of a socially integrated, value conscious individual”. The “prototype” for the Court is the accusation of a criminal offence. The Court has also held that the meaning of a statement must take into account the external circumstances in which it was made as well as the particular publication style, such as caricature, parody, and satire must be fully accounted for.

Limits of free expression Following ECtHR jurisprudence, the Supreme Court has affirmed that freedom of expression “does not apply simply to ‘news’ or ‘ideas’ that are viewed as convenient or inoffensive or with indifference, but also to [expressions] that offend, shock, or disturb”. In  the Supreme Court’s , “in the case of value judgments – which the ECtHR tends to accept [as admissible] – the limits of acceptable criticism lie with ‘excessive judments’, with potential value judgments without basis in fact, and with formal insult. An ‘excessive judgment’ is one that is “disproportionate in terms of the facts at hand or that has no relationship to objective reality”. The Supreme Court has  that “the limits of acceptable criticism as regards political figures relating to their official function are considerably wider that as regards private persons”. This standard also applies to “persons leading a public life”. The same applies to politicial debate, in which only a “thin” demonstration of truth can be demanded.

Recent Legal Changes

The Criminal Code Amendment Act of 2015 brought minor changes to provisions on defamation and insult:

• The maximum fine for defamation (Art. 111) was increased from 360 to 720 times the daily rate.
• The possibility of a fine (max. 720 times the daily rate) was introduced as a punishment for insulting the state; previously, the only penalty foreseen was imprisonment for up to six months.
• The possibility of a fine (max. 720 times the daily rate) was introduced as a penalty for some forms of slander (Art. 297).

Notes and Acknowledgements

Information for Austria was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). Last update: March 2017.

The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.  


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