15.03.2019
In its ruling of December 12, 2018 (15 Os 134/18 x), the Supreme Court clarified its case law on Section 7a of the Media Act (protection against disclosure of identity in special cases). According to this provision, victims, suspects and, more recently, informants before a National Council committee of inquiry enjoy specific identity protection. If the disclosure of the identity of the persons named violates their legitimate interests without there being an overriding public interest in the publication of the identifying information due to the person's position in public, any other connection with public life or other reasons, the person affected has a specific media law claim against the media owner for compensation for the insult suffered. The compensation amount must be requested in the context of criminal proceedings before the relevant regional court for criminal matters; a time limit of (in principle) six months from the first publication applies (Section 8 Paragraph 2 of the Media Act).
In this specific case, the Supreme Court had to assess the facts of the case concerning a Styrian doctor, which had led to widespread media coverage in connection with alleged criminal offenses for which the doctor was accused before the Regional Criminal Court in Graz. In some media, the doctor, who was the brother of a well-known politician, was also mentioned by name. The doctor had filed media law applications against this naming and the resulting disclosure of his identity.
While the Vienna Regional Court for Criminal Matters considered that the elements of Section 7a Paragraph 1 Item 2 of the Media Act were not met due to a predominant interest in publishing (also) the identity of the person concerned (and therefore did not award any compensation), the Vienna Higher Regional Court, as the court of appeal, granted the doctor's applications in its judgment of December 20, 2017 and awarded compensation. In this case, there was no qualified interest in publishing that outweighed the doctor's interest in anonymity, which is why the publication (also) of the identifying information was unlawful and compensation would have to be paid.
In principle, the legal process in criminal media proceedings ends before the relevant higher regional court. In the present case, however, the General Prosecutor's Office has filed an extraordinary appeal (“nullity appeal to uphold the law”). According to Section 23 of the Code of Criminal Procedure, the General Prosecutor's Office can file this extraordinary appeal, even after the respective decision has become final, whenever it believes that a criminal court's judgment is based on the violation or incorrect application of a law.
The Attorney General's appeal for annulment to uphold the law was also successful in the present case: The Supreme Court, following the relevant arguments of the Attorney General, was of the opinion that the physician as a doctor "Part of the Austrian health system and as such responsible for the medical treatment of many people“ The incriminated acts would be in “a (not only indirect, but even) direct connection with the exercise of the profession" of the doctor, the criminal acts would be of a serious nature, which is why “In view of the large number of [alleged] acts and the long periods of time during which the crimes were committed […], in concrete terms, a warning to the public about his person was justified”Therefore, the identifying reporting on the criminal proceedings against the doctor was motivated by an overriding public interest (also) in the identity, and was therefore permissible.
This decision is - like many judgments on freedom of expression - one of an individual case, based on a situation that can be qualified as an exceptional case. It is difficult to reconcile it with the fundamental right to respect for private and family life (Article 8 of the ECHR) that also applies to a suspect. Whether it would not have been more appropriate in this case to balance the "conflicting fundamental rights" fairly by giving priority to the doctor's "anonymity interests" is an open question - the Supreme Court has decided.