Presentation of secretly recorded videos in guardianship proceedings

Apr 7, 2021 Benn-Ibler Rechtsanwälte

If an injunction is issued to stop the disclosure or dissemination of secretly recorded video material, this does not preclude the presentation of the recordings in court proceedings.

In the case at hand, the defendant secretly recorded several videos showing the plaintiff in a heavily intoxicated state. Despite being pregnant, the plaintiff drank alcohol in large quantities almost daily and consumed marijuana.

The plaintiff sought an injunction to stop the disclosure or dissemination of these recordings without her consent.

The court of first instance issued the requested interim injunction and ruled that secret video and audio recordings in the private sphere constituted an invasion of privacy. Thus, although the disclosure of the videos to third parties was not justified, the defendant had an understandable interest in making the recordings. Due to the plaintiff's pregnancy, the best interests of the unborn child clearly outweighed the plaintiff's interest in respect for her privacy and data protection. The presentation of the recordings in the guardianship proceedings could not be affected by the injunction. The Court of Appeal confirmed this decision.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) agreed with the decisions of the lower courts and stated that the presentation of evidence in court proceedings cannot be prevented. This applies even if the evidence was obtained unlawfully. The right of the evidence provider to provide evidence was also constitutionally guaranteed. General privacy rights cannot, as a matter of principle, go so far as to prevent the establishment of the truth in a trial. For these reasons, the plaintiff had no independently enforceable claim under civil law for the defendant to refrain from producing the recordings in question in court proceedings. The admissibility of evidence must always be assessed in the respective proceedings on the merits.

OGH 6 Ob 16/21b (18.01.2021)