OGH: Joint and Several Liability of Online Shitstorm Posters

Jun 21, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that those participating in an online shitstorm can expect to have to pay compensation for the whole of the damage caused.

In the case at hand, the plaintiff is a police officer who was on duty at a demonstration in the year 2021 and was photographed and filmed in the process. A video of the plaintiff was published by a third party on a social media platform with the following call to action: ‘Let the face of this cop be seen around the world. This cop escalated during a protest. An innocent 82 year old man was dragged to the ground, arrested, and interrogated for hours. This cop is guilty.’ The post had hundreds of shares on social media. The defendant, ‘out of displeasure’ and without first verifying the veracity of the post, also posted a screenshot of the video on his profile, while the plaintiff had actually only been a member of a police barrier and had not participated in the police action against the senior citizen.

The plaintiff sought compensation for non-pecuniary loss suffered as a result of the shitstorm, and the withdrawal of the accusations.

The court of first instance awarded the plaintiff the sum of 450 euros and dismissed the additional claim for 2,550 euros. This decision was upheld by the court of appeal.

The OGH, however, awarded the plaintiff the full amount of the claim – 3,000 euros, stating in its ruling that victims of a shitstorm do not have to name and prove the specific source of a defamatory statement for each and every offence. It is therefore sufficient for the plaintiff to prove that he was the victim of a shitstorm and that the defendant was unlawfully and culpably a party to it.

The result is: The parties causing the damage are jointly and severally liable. The victim may have a claim against one of the parties for compensation for the full amount of the damage. The parties will then have to share the cost of the damage between them by way of a recourse procedure. In other words, the risk of uncollectibility of the claim is on the part of the party who has caused the damage and paid compensation.

OGH 6 Ob 210/23k (26 April 2024)