OGH on Publicising Land Register Data

Mar 10, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed that a professional interest by journalists can constitute a legal interest when obtaining sought-after information, thus justifying a journalist’s request for information under Section 5(4) of the Austrian Land Register Reorganisation Act (Grundbuchsumstellungsgesetz, hereinafter GUG).

The first applicant is a journalist working for the Austrian Broadcasting Corporation, ORF, and the second defendant publishes for a print publication. The two applicants requested information from the list of names in the Austrian land register in order to research how and if EU sanctions imposed on account of the war in Ukraine were being implemented in Austria. The court of first instance rejected their request. Under Section 5 (4) GUG, in order to access the land register a person’s legal interest must be demonstrated, which requires more than only proper financial or information interest. The court of appeal also followed this legal opinion.

The OGH, however, took a different view than the lower courts, stating:

The appellant (the first applicant only) claims that a journalistic interest in information should be regarded as equivalent to any legal interest under Section 5(4) GUG. According to case law by the European Court of Human Rights (ECHR), the right of access to information is also included in the constitutionally guaranteed right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) if, for example, access to information is essential for the exercise of freedom of expression. It was to be assumed here that the interests of the journalists in gathering information as a preparatory step followed by disclosure of information in the public interest, constitute a legal interest under Section 5(4) GUG, since in case of doubt a law must be interpreted in conformity with the constitution. By comparing this law with the relevant case law of the German Federal Constitutional Court, the OGH considered this specific legal situation transferable to Austrian law. However, Section 5 (4) GUG requires tangible proof of public interest in obtaining land-registry information. Such a proof would be, for example, if disclosure of land-registry data will facilitate transparency concerning the manner of how state agencies conduct their business, which would be of general interest to society. In a second step, the OGH concluded that any interest of the press concerning information about EU-sanctioned persons listed in the land register outweighs the interest in freedom of information according to Art 10 ECHR versus the personal rights of the persons entered in the land register.

OGH 5 Ob 178/22w (05.12.2022)