20.11.2020
On November 19, 2020, the federal government published the government draft of the Hate Speech on the Internet Act - HiNBG (481 dB). The text of the government draft differs in some (not insignificant) points from the ministerial draft of September 2020 (50/ME).
I. The following key points are relevant to the Media law significant:
- The media law compensation amounts will be increased and, according to Section 8 Paragraph 1 of the Media Act, will now be up to €40,000 as standard for all compensation cases and up to €100,000 in serious cases according to Sections 6, 7 or 7c of the Media Act.
In the uniform regulation of criteria and maximum amounts, the possibility of awarding higher compensation amounts in the event of "a particularly serious breach of the required journalistic care" was dispensed with (as stated in the ministerial draft). Instead, the wording "grossly negligent or intentional conduct by the media owner or his employee" is to be used.
Applicants are now prohibited from arguing for the award of particularly high compensation amounts on the basis of a (possibly not culpable or only slightly negligent) breach of journalistic diligence. The gross negligence (or intent) now anchored in the text of the law appears to represent a certain hurdle for the award of particularly high compensation amounts. Naturally, there is still no reliable case law on when grossly negligent behavior on the part of journalists is present when the media law compensation requirements are met. - According to the explanations to the government bill, the new regulation in Section 8 of the Media Act is intended to encourage the judiciary to make full use of the scope of compensation amounts under media law and to tend towards higher compensation amounts. A minimum compensation amount of € 100 was set (probably more as a political signal).
It remains to be seen how the media law decision-making practice will react. The new aspects of fault can be used to argue for both higher and lower compensation amounts in individual cases. It is therefore unclear how the changes will affect compensation amounts. - Some terminological inconsistencies still contained in the ministerial draft have been eliminated. For example, the term “injury” is now used uniformly for all compensation claims instead of the terms “insult” or (still contained in the ministerial draft) “injury”.personal impairmentThis consistency should avoid questions of interpretation as to whether the legislator intended to standardise different legal consequences by using different terms for different compensation situations.
- With regard to the expansion of the circle of those entitled to claim (in the case of the new Section 7a of the Media Act) to include relatives and witnesses, Section 7a Paragraph 2 Item 1 of the Media Act was supplemented to clarify when the interests of this group of people worthy of protection are in any case violated. This is the case, for example, when legitimate security interests could be compromised.
- The possibility already granted to the employer in the ministerial draft to submit an application for withdrawal or deletion “for” (or in addition to) his employee has now been clarified. The “assertion of the employer’s claimis not dependent on the consent of the employee" (new Section 33a of the Media Act). It remains to be seen how often companies will make use of the opportunity to make such requests.
- Through 36b Media Act new The possibility is created to enforce claims for deletion and publication of judgments against host providers if the media owner cannot be prosecuted, for example because he or she is based abroad.
II. In addition to changes in numerous other legal matters (including the ABGB and the ZPO), the government bill also introduces a new criminal provision in the StGB concerning “unauthorized image recordings”.
The text of Section 120a of the Criminal Code (new) has been partially adjusted compared to the ministerial draft and reads as follows in the version of the government proposal:
120a (1) Whoever intentionally takes a photograph of the genitals, pubic area, buttocks, female breasts or underwear covering these parts of the body of another person who has protected these areas from view or who is in a dwelling or in a room specially protected from view, without the consent of that person shall be punished with imprisonment for a term not exceeding six months or with a fine not exceeding 360 daily rates.
(2) Anyone who makes a photograph as defined in paragraph 1 available to a third party or publishes it without the consent of the person depicted shall, unless the offence is punishable by an equal or more severe penalty under another provision, be punished by imprisonment for a term not exceeding twelve months or by a fine not exceeding 720 daily rates.
(3) The offender may only be prosecuted with the authorization of the injured person.
This means that classic voyeuristic photography (taking photos of people's homes) can now be punished under criminal law, even if there is no special protection against people looking in (e.g. a large, easily visible glass front in the city center). The penalty for taking photos (paragraph 1) has been reduced compared to the ministerial draft (6 months instead of 1 year), while the penalty for publishing/making such photos accessible (paragraph 2) remains at up to one year.