15.07.2019
In 6 Ob 6/19 d, the Supreme Court has once again dealt with the question of whether or not it is permissible to make film or photograph recordings of persons who do not consent to it.
The Supreme Court had already dealt with this question in 6 Ob 256/12 h of February 27, 2013. At that time, a case had to be decided in which photographs had been taken during a medical examination, against the will of the people present, with the photographer stating that he only needed these photographs for “amusement.”
Even then, the Supreme Court had stated that, in principle, the mere recording of a person - as opposed to the distribution of the photograph - should be considered permissible. Even a general right of personality under Section 16 of the Austrian Civil Code does not prohibit the taking of photographs. In the context of a balancing of interests and interests in the individual case, however, it was to be assumed that, because it was a targeted recording of the plaintiff (for the photographer's amusement!), the facts should be classified differently than mere holiday photos. At the time, the Supreme Court granted the injunction.
In the present case, the Supreme Court came to a differentiated solution: the production of the video recording was permissible, but its publication was not; (only) the latter was something the defendant had to refrain from doing.
The subject of the recording was an official act in which unmasked police officers (including the plaintiff) also took part. The video recording, which lasted just under a quarter of an hour, was published on YouTube and was available there for several months. The police officer did not want to accept this and filed a lawsuit to stop him from making video recordings and to stop him from publishing such videos (particularly on YouTube).
However, in the opinion of the Supreme Court, the making of the video recording was permissible in the present case, as the purpose was to document the official act, not to specifically record (only and specifically) the complaining police officer. Since there was no fundamental legal prohibition against such a video recording (see, in contrast, Section 22 of the Media Act, according to which video recordings are prohibited without exception during court proceedings), the balancing of interests to be carried out would show that there were no sufficient reasons to prohibit the defendant from filming the official act.
By contrast, dissemination on the Internet would expose the plaintiff to a broad public and his anonymity would be compromised without any objective reason. There is no apparent public interest in information that would have to be taken into account in the context of a balancing of interests in favor of publication.
This decision of the Supreme Court makes it clear that, although taking photographs or video recordings of people may be permissible in certain cases, the subsequent distribution of these recordings on the Internet is not.