OGH: No Liability for Repeated Reporting of Criminal Offenses

Jan 27, 2023 Benn-Ibler Rechtsanwälte GmbH

In the present case, the Austrian Supreme Court (Oberster Gerichtshof) dealt with a claim under Section 1330 (2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The plaintiff is a self-employed PR consultant who was convicted of major fraud in the USA. The case was covered in several Austrian newspapers.

In 2013, the plaintiff rented a single-family home from the defendants. In 2014, the defendants sued for rent since the plaintiff was repeatedly not paying any rent. Consequently, the defendants started researching information about the plaintiff and came across the media reports. A short time later, the defendants filed a complaint with the public prosecutor’s office that the plaintiff had fraudulently not paid rent and had purportedly stolen several objects. However, this investigation was dropped. Eventually, the plaintiff brought action for injunctive relief and damages in 2018. He argued that the defendants had been making and spreading verifiably false and defamatory accusations about him ever since 2014. The defendants responded that their statements were confidential communications that did not meet the criteria for damage to credit or reputation.

The court of first instance and the court of appeal dismissed the action.

The Austrian Supreme Court, however, considered as follows:

Pursuant to Section 1330, paragraph 2, sentence 3 of the Austrian General Civil Code (ABGB), a person making a communication is not liable for communications made in public, the untruthfulness of which the person did not know. Also, confidentiality is not an issue if such a communication is likely to be passed on to third parties. More specifically, careful verification of communications in criminal matters are justified by authorities, unless any such communications were made against better knowledge. However, exemption from liability does not apply if better knowledge is present and disclosure would thus be unlawful. However, the defendants were not positively aware of the incorrectness of the assertions. It also did not cause any additional damage, according to the Supreme Court, that the defendants kept repeating their allegations. After all, they had not acted out of an unfair motivation, but rather because they felt that the law enforcement authorities had not been properly dealing with the allegations up to that point.

OGH 6 Ob 227/21g (18.11.2022)