VfGH: Counterstatements May Be Too Expensive

Apr 21, 2023 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has repealed Section 17 (5) of the Austrian Media Act (Mediengesetz, hereinafter MedienG) as unconstitutional, as the cost risk of wrongfully obtained counterstatements can be unreasonably high.

The initial case was a controversy between the Austrian daily newspaper ÖSTERREICH and the Viennese city councillor Ulli Sima. ÖSTERREICH had published an article on high personnel costs in connection with checks on the smoking ban in restaurants introduced by Sima in 2019. In accordance with Section 12 (1) MedienG, Sima requested a free counterstatement stating that the allegations published were incorrect, incomplete, and misleading and that the costs actually incurred had been significantly lower.

This counterstatement was, as the court of appeal later ruled, wrongfully obtained and Sima would have had to pay some EUR 236,000 in placement fees for the wrongfully obtained counterstatement as well as for the publishing of the appeal judgement as per Section 17 (5) of the MedienG.

This provision, however, is unconstitutional.

If a court has ruled that a counterstatement shall be published, the appeal against this ruling has no delaying effect. As compensation, the defendant, in this case the daily newspaper ÖSTERREICH, is entitled to the publishing of the appeal judgement. Upon application, the opponent, in this case Councillor Sima, shall be ordered to pay the publication fee.

The price of the publishing fee is primarily determined by the rate that the media owner can charge for placements in that particular medium. Hence, it essentially depends on the market position of the medium. A certain market position is usually associated with a corresponding economic position of the media owner, which, in many cases, is superior to that of the ‘other side’. Consequently, the ‘other side’ is exposed to an economic risk that may no longer be sustainable, which can lead to waiving one’s right of reply from the very outset.

Section 17(5) MedienG thus violates the right to respect for private and family life under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10 thereof.

Austrian lawmakers now have until 1 July 2024 to adopt a new regulation that is in conformity with the Austrian constitution.

VfGH G 297/2022-24 (15.03.2023)