Supreme Court 26.04.2024, 6 Ob 210/23k
The Supreme Court recently ruled (OGH 26.04.2024, 6 Ob 210/23k) that a participant in a shitstorm can be required to compensate for all the damage caused by the shitstorm. This naturally raises a number of questions for everyday life:
From now on, do I have to consider the possibility of a subsequent shitstorm with every critical post?
According to current case law: Yes, especially if the post is called upon to be shared. In this case, it must be taken into account that liability may also arise for damages that arise only when the post is shared by other users, or that have already arisen from previous posts. Of course, this can prevent people from making critical comments or "sharing" other people's posts, especially in borderline cases where it is not immediately clear whether the post is illegal.
What claims for damages are generally available?
A contribution or posting can lead to claims for compensation under media law, to damages under data protection law or civil law and - if a photograph of a person was used - possibly also to a claim under copyright law. Even if there are several grounds for a claim, there will not be multiple compensation.
What is new about this decision?
The ruling clarifies that in the case of shitstorms, the total damage (which is only caused by all postings together) can in principle be claimed in full from a single poster. However, the Supreme Court states that a plaintiff can only claim total damage from a single poster until he has actually received compensation for the entire damage.
How does the Supreme Court come to the conclusion that the posters are jointly liable?
It is not possible to say which part of the damage was caused by which posting. This inexplicability should be at the expense of each poster, not the injured party. According to the Supreme Court, the injured party - who is being virtually pilloried - does not have to provide proof that the damage was caused by the individual poster, which would be more difficult for him the bigger the shitstorm, but rather each individual poster should be liable "for everything".
Is the individual poster always liable for the total damage?
In principle, yes, but the Supreme Court leaves "back doors" open. A poster could argue that his contribution to the shitstorm only contributed insignificantly to the overall damage. But a call to share is problematic in any case.
The individual poster could also claim that the victim has already received the total damage from other participants in the shitstorm. However, it is almost impossible to prove this.
Can an individual poster claim recourse against other posters?
Yes, according to § 896 ABGB, in theory, pro rata recourse can be taken against other perpetrators. In practice, this will often fail. The individual poster is in an even worse position than the victim, for example when it comes to obtaining information about the identity of the other perpetrators on social media platforms.
How high is the “total damage” caused by the “shitstorm”?
The Supreme Court left this open in this specific case. The plaintiff does not appear to have made a decision either; according to the ruling, the plaintiff seems to be assuming total damages of more than €800,000.00, which seems unrealistically high. Such an amount is difficult to reconcile with previous case law, which generally awards low five-figure amounts even in extreme cases.
Who decides on the amount of damage?
As a rule, it is about non-material damage, i.e. damage that only occurs in the emotional world of the victim (hurt, fear, insecurity) and cannot be objectively measured. Therefore, the court decides according to "free conviction".
Can payment obligations arise because of a single posting even without a shitstorm?
Yes! Such claims usually reach at least four-figure amounts. In addition, there are legal costs. If several proceedings are initiated in relation to a single posting, a single posting can therefore become very expensive. Even more unpleasant are possible criminal proceedings, which can end with a conviction and a hefty fine.
Does this judgment answer all questions?
No. Above all, the amount of the possible total damage in the case of shitstorms remained undiscussed. The amount of € 800,000.00 mentioned is difficult to reconcile with previous decisions. A plaintiff should at least be required to commit to a total amount of damage. The burden of proof that this total damage has not yet been compensated should lie with the plaintiff, because a single poster can never provide this proof. The assumption of the OGH that a poster can "much lighter“ than the victim could pursue his claims, does not apply in this general sense. In principle, such massive liability consequences (even if they are only a consequence of the distribution of the burden of proof) seem difficult to reconcile with the fundamental right to freedom of expression.
12.07.2024