The Higher Regional Court of Vienna had to decide whether calling a person a "criminal drug dealer" in a television discussion constitutes a punishable defamation. In its decision of September 3, 2025, the court dismissed the private prosecutor's appeal and upheld the defendant's acquittal.
The defendant, a well-known politician, criticized the guest selection policy of a public broadcaster during a political discussion program. This criticism stemmed from the participation of the private prosecutor in a television discussion. In this context, the defendant repeatedly referred to the private prosecutor as a "criminal drug dealer.".
The private prosecutor had indeed been convicted several years earlier of serious drug trafficking, for which he had served a prison sentence. This conviction was widely known due to extensive media coverage, not least because the private prosecutor himself had spoken about it publicly on several occasions.
The private prosecutor felt his honor had been violated by the statements and sued for defamation, alleging a previously adjudicated criminal offense, and damaging someone's reputation. The court of first instance acquitted the defendant; the private prosecutor appealed.
The Vienna Higher Regional Court upheld the acquittal. It determined that the statements in question were not understood by the spectators as an accusation of current criminal conduct, but rather as a reference to the private prosecutor's earlier, actual conviction.
In the court's view, there was therefore a lack of both a false statement of fact and the necessary intent to disparage the private prosecutor or to accuse him of ongoing drug trafficking. Furthermore, no concrete damage to or threat to the private prosecutor's professional or economic advancement could be established.
The statements, viewed in their overall context, were to be understood as political criticism of the broadcaster's invitation policy. Furthermore, no criminal defamation had occurred, as no targeted rebuke or intent to offend could be established.
The appeal was therefore dismissed; the private prosecutor must bear the costs of the appeal proceedings (limited to the costs of the defense).
The decision underlines that referring to true, publicly known criminal convictions can, in principle, be permissible, particularly in the context of political or media discussions. The decisive factor is how a statement is understood by the average audience in the specific context.
At the same time, the ruling highlights the limits of criminal law's protection of personal rights: those who repeatedly and publicly address their own conviction must be prepared to accept more critical scrutiny. For media outlets, politicians, and commentators, the decision provides crucial clarity regarding when strong language is still protected by freedom of expression and when it can become a criminal offense.
OLG Vienna 03.09.2025, 17Bs150/25w