OLG Vienna 21.02.2024, 17 Bs 305/23m
Due to digitalization and the role of digital media in today's society, the question of what can be done against media reports - which are usually accessible worldwide - that invade the privacy of individuals is always raised. In this regard, in addition to many other procedures, such as a civil lawsuit, a request for a reply, a mandate procedure under the "Hate on the Internet Act" within the meaning of Section 549 of the Code of Civil Procedure - there are above all claims for compensation under the Media Act, which can generally be asserted in the context of an unofficial criminal procedure, in an independent compensation procedure or in connection with a private prosecution. When determining the amount of such compensation, the scope and effects of the publication, the type and extent of distribution and the economic existence of the media owner must be taken into account. The amount of compensation under media law is intended to compensate for the insult suffered, i.e. the immaterial emotional damage.
The applicant in the proceedings OLG Vienna 21.02.2024, 17 Bs 305/23m, who had once held high political offices, divorced his wife. The respondent, a media owner, reported extensively on the divorce on her website and in her app, revealing numerous personal details. The information published included the ex-wife's maiden name, the waiver of maintenance claims by both parties, the wife's sole custody of their son and a monthly maintenance payment of € 580 by the applicant. Particularly piquant were reports of an alleged affair by the applicant, which had allegedly led to an illegitimate child. The Vienna Regional Court for Criminal Matters initially stated that the objective elements of defamation had been met, and that this was due to the "Allegations that someone has committed serious marital misconduct and cheated on his future wife with another woman several times during the relationship, and that an illegitimate child was born from this affair". In addition, the disclosure of information regarding the details of the divorce (which was otherwise amicable) had interfered with the applicant's most personal life. The court set a compensation of €4,500 for two articles. The ex-politician was not satisfied with this and filed an appeal. He argued that the compensation amount set was too low, especially considering the economic power of the media owner.
However, the Higher Regional Court of Vienna (OLG Vienna) rejected the appeal and confirmed the decision of the first court. The Higher Regional Court of Vienna emphasised that the compensation pursuant to Sections 6 - 7c of the Media Act should not be understood as a penalty, but as compensation for non-material damage. In this specific case, the range for compensation was between €100 and €40,000, and the €4,500 set by the first court was moderate but appropriate. The Higher Regional Court of Vienna also stated that the type and manner of publication had been sufficiently taken into account by the first court and that the reporting was neither degrading nor ridiculing. The Higher Regional Court of Vienna also emphasised that the applicant had not sufficiently explained the extent to which the reporting had affected his private and professional advancement.
The decision of the Vienna Higher Regional Court underlines the importance of protecting privacy and at the same time shows the limits of compensation in media law. It makes it clear that the performance of the medium should only be taken into account insofar as its existence is to be preserved, but that economically strong media do not have to pay higher compensation under the Media Act for this reason alone. The Media Act does not provide a basis for setting higher compensation for efficient media, as it is not a penalty but compensation for non-material damage. For those affected, the judgment offers guidance on the possible compensation amounts and the conditions for calculating them.
05.03.2024