08.05.2020
Supreme Court 19.12.2019, 6 Ob 76/19y
Over a period of several years, the owner of a café received a total of 15 anonymous letters in which he and his parents were viciously insulted. These letters were made known not only to the owner of the café but also to his father, who read some of the letters. The owner also discussed the letters with a regular guest of the café.
The owner of the café eventually managed to track down the sender of the letters. He filed a lawsuit at the Neumarkt District Court to stop the insults by means of anonymous letters and to claim damages for the sleep disturbances, lack of joy in life and physical discomfort caused by the letters.
The district court came to the conclusion that the claim under Section 1330 Paragraph 1 ABGB (insult to honor) was justified. The minimum publicity required for an insult to honor under Section 1330 Paragraph 1 ABGB was present, since the plaintiff's father had also read the letters and the plaintiff had spoken to a regular customer about the letters. The requested damages were also awarded.
The appeal court dismissed the entire claim. It stated that the minimum publicity required for defamation under Section 1330 Paragraph 1 of the Austrian Civil Code[1] would not have existed. The plaintiff himself had made the letters available to a regular customer. A claim for damages would also be ruled out because the plaintiff had not explained what damage he had suffered and in particular had not claimed that his impairments were of a medical nature. However, an appeal to the Supreme Court was allowed. The question of the minimum publicity of an insult to a "manageable collective" (the plaintiff and his parents) in the present form had not yet been dealt with in case law. The question of whether claims under Section 16 of the Austrian Civil Code (a "central norm" of civil law, on which claims for injunctive relief against image recordings were also based,[2]) and according to § 1328a ABGB (intrusion into privacy).
The Supreme Court came to the conclusion that the plaintiff had not only requested an injunction against the incriminating statements because they had damaged his reputation in accordance with Section 1330 of the Austrian Civil Code, but also because he felt his dignity had been diminished. It went on to say that in a large number of cases, case law had judged harassment by telephone calls, emails and text messages to be unlawful in accordance with Sections 16 and 1328a of the Austrian Civil Code. Therefore, in the present case of 15 insulting letters, a claim for an injunction due to a violation of Sections 16 and 1328a of the Austrian Civil Code would also be justified.
With regard to the payment request, the Supreme Court found that the established ideal Damages (sleep disorders) are not compensable because there is no "significant violation" of privacy in the intensity required by Section 1328a Paragraph 1 ABGB. The Supreme Court thus confirmed the rejection of the request for payment and instructed the appeal court to supplement the procedure with regard to the request for an injunction.
In practice, this means that the Supreme Court, in its now established case law, recognizes a claim for injunctive relief against the sending of offensive letters on the basis of Sections 16 and 1328a of the Austrian Civil Code. Such judgments are then enforced with injunctive relief pursuant to Section 355 of the Austrian Civil Code (coercive penalties, etc.). However, it only accepts non-material damages claims (in accordance with the wording of Section 1328a of the Austrian Civil Code) if there is a significant infringement of privacy. The Supreme Court did not see the sending of several grossly offensive letters as such a significant infringement of privacy. However, even according to this case law, it is not impossible to claim damages on the basis of Section 1328a Paragraph 1 Sentence 1 of the Austrian Civil Code if there are actual psychological impairments with medical value.
[1] See also OGH 30.10.2017, 6 Ob 249/16k.
[2] OGH June 27, 2019, 6 Ob 6/19d; OGH February 17, 2013, 6 Ob 256/12h.