Supreme Court 31.8.2018, 6 Ob 139/18m

In 2016, a newspaper published an article with a photo of the plaintiff, the content of which was as follows:

Two Syrians attacked a young amateur musician in his apartment in order to steal his ATM card and code. When he refused, they tied him up, strangled and beat him, put him in the bathtub and poured detergent over him to destroy any traces. The two men then took some of the victim’s personal belongings, including his clothes, and fled. During their escape, they were observed by neighbors – the one with the “fuzzy head” stood out in particular. His identity could finally be established on the basis of his ID, which was found in the dead man’s apartment. The suspect also posed on Facebook in his victim’s clothes. He and his helper were arrested and have confessed.

The defendant – the media owner of the periodical print publication – was found guilty by the regional court of violating the presumption of innocence and ordered to pay compensation to the plaintiff for the injury suffered pursuant to Section 7b (1) MedienG because he had been portrayed as guilty of robbery-murder and not merely suspected.

It was not until more than six months after the article was published that the plaintiff was finally found guilty of the crime of aggravated robbery resulting in death pursuant to Sections 142 (1), 143 (2) last case StGB and aggravated extortion pursuant to Sections 15, 144 (1), 145 (1) no. 2 StGB because he, in deliberate and intentional cooperation with an accomplice, forcibly robbed the victim by grabbing her by the neck, punching him in the stomach and face, binding his hands and feet with adhesive tape, gagging him with a piece of cloth and choking him for several minutes using a forearm chokehold, whereby the use of force resulted in his death.

The Court of Appeal dismissed the action for injunctive relief based on Section 78 UrhG and the allegation that the defendant had violated the presumption of innocence on the following grounds:

A binding effect of a criminal court conviction exclusively under § 7b MedienG on decisions on claims under § 1330 ABGB cannot be considered due to the completely different claim requirements and elements of the offense and also applies to claims under § 78 UrhG.

It is undisputed that it is a violation of the presumption of innocence if someone is portrayed as guilty in a medium before a final criminal conviction. However, the protection of the person concerned ends at this point. The fact that it is possible to reopen criminal proceedings does not change this.

It is established case law that the question of the risk of repetition in injunction claims under the Copyright Act must be assessed according to the same principles as in proceedings under the Unfair Competition Act. Here, too, the assumption of a risk of repetition must not be narrow-minded; rather, such a risk must generally be assumed even in the case of a one-time violation of the law. However, it is to be considered excluded if the infringed party is protected by an enforceable acknowledgment or if the defendant can otherwise prove the impossibility of a new infringement.

In view of the final conviction of the plaintiff for the offenses mentioned in the article, a repetition of the violation of the presumption of innocence by the defendant can therefore be ruled out.