When Does Legitimate Criticism Become Defamation?

Sept 17, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to consider whether the public allegation that a journalist was telling ‘tall tales’ constituted permissible criticism or an impermissible defamatory insult.

In the case before the OGH, the defendant had commented on a newspaper’s Facebook post concerning the private reasons for a well-known journalist and news presenter’s absence from professional activities. The court of appeal interpreted the comment as alleging that the claimant was making false or exaggerated statements and as implying a potential link between his professional absence and an adverse health condition.

The OGH initially stressed that an expression must be evaluated in its full context and according to the overall impression it conveys. The relevant consideration is not the speaker’s subjective intention, but how an impartial, reasonable reader would understand such a statement. In the present case, even the use of a face-with-tears-of-joy emoji did not establish that the allegation of lying was intended merely as a joke or ironic comment.

Distinguishing between legitimate criticism and defamatory insult requires a careful balancing of competing interests. In particular, the right to freedom of expression under Article 10 of the ECHR must be considered, while journalists and other public figures are generally expected to tolerate a higher degree of criticism.

Freedom of expression nevertheless has limits when it involves an excessive value judgment. Under established case law, negative value judgments are especially impermissible when they lack a factual basis. Accordingly, accusing someone of lying without identifying supporting facts may amount to an injurious insult under section 1330(1) of the Austrian General Civil Code (ABGB).

In the case before the court, the allegation that the claimant had fabricated stories lacked any verifiable factual basis. The statement identified neither specific inaccuracies in the claimant’s reporting nor any other grounds supporting the allegation. Accordingly, the OGH upheld the lower courts’ conclusion that the statement amounted to an impermissible and excessive value judgment.

OGH 6Ob114/26x (12 August 2026)