OGH: Reference to court decision does not harm revocation

Feb 25, 2022 Benn-Ibler Rechtsanwälte

A revocation of an untrue, reputation-damaging factual allegation under Section 1330 para 2 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) must be declared by the infringer himself. However, the voluntary nature of the declaration is not an element of the revocation, which is why a reference to the court decision is not harmful.

In the case in question, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of the voluntary nature of a revocation. In a previous decision of the Commercial Court of Vienna, the obligated party was found guilty to refrain from disseminating statements and to revoke them as untrue. The obligated party complied with this after the petitioner had been granted an enforcement order "in accordance with the decision of the Commercial Court of Vienna ...". The petitioner then filed an application for enforcement on the grounds that the revocation had not been made properly and in accordance with the decision, as the reference to the court decision invalidated the revocation.

The OGH held that the voluntary nature of a revocation is not an element of the revocation. According to Sec. 1330 para 2 sentence 2 ABGB an assertion is withdrawn as untrue by declaration of the obligate party. This is intended to remove any detrimental opinions that have arisen subsequently. It must be in unequivocal, unconditional form and proportionate to the effect of the offence. However, the publication of a decision is to be distinguished from this, which is not provided for in Sec. 1330 ABGB and cannot be derived from it.

According to the OGH, the publication of the revocation in no way implies that the obligated party is convinced of the falsity of his allegations, let alone that he would strive to restore the good reputation of the infringed party. Contrary to the literature cited in the decision, which sometimes considers an acknowledgement of the decision in the revocation inadmissible, the OGH ruled that the voluntariness of the revocation is not a mandatory element, but that the basis is merely the court decision. However, the revocation may not be devalued by annotations or additions that restrict, relativise or invalidate the character of the revocation.

OGH 3 Ob 218/21m (22.12.2021)