Supreme Court 23.10.2023, 6 Ob 191/23s
The production of a picture without the consent of the person depicted can constitute a violation of privacy and thus also of personal rights within the meaning of Section 16 of the Austrian Civil Code. The Supreme Court recently answered the question of when such an infringement of personal rights is justified in the case 6 Ob 191/23s.
There had been a tense situation between the parties in the case for some time because the defendant had demanded compensation from the plaintiff in an earlier case. The reason for this was property damage to a house façade, which the plaintiff was alleged to have caused. The defendant presented a video recording of a staggering man and claimed that it was the plaintiff. The plaintiff vehemently denied this and stated that he no longer drank alcohol and therefore could not be the person filmed. To refute this statement, the defendant photographed the plaintiff as he was drinking beer in his garden.
The plaintiff subsequently requested that the court order the defendant to stop filming and photographing on his property to refrain from and all photographs to destroyThe court of first instance rejected both requests. The plaintiff's claim for injunctive relief lacked "the necessary risk of repetition, since the defendant's conduct as a whole provides strong indications that it is seriously willing to refrain from future disruptions. There is also no imminent threat of a breach by the defendant, nor is there any serious concern that future breaches will occurThe plaintiff appealed against this decision and the matter was finally decided by the Supreme Court.
Contrary to the two previous courts, the Supreme Court found that the intrusion into the plaintiff’s privacy could not be justified by a lack of evidence, since the defendant had argued that the recordings were only “precautionaryHowever, such recordings must be indispensable for the evidence, and the interests protected by the use of the evidence must outweigh the violation of the privacy of the person concerned. Therefore, there is no lack of evidence on which the defendant could rely.
The Supreme Court did not share the view of the lower courts that the defendant was seriously willing to refrain from future disturbances. Although the defendant had deleted the photos and videos during the proceedings and declared that it would not take any further pictures, the Supreme Court was of the opinion that there was a risk of repetition and upheld the claim.
With this ruling, the Supreme Court shows that an invasion of privacy through photo and video recordings is not justified by the interest in having particularly conclusive evidence in a case. Rather, the enforcement of the law must simply be impossible without the recordings; the interests protected by the use of the evidence must be more important than the right to privacy.
14.11.2023