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Austria: Privacy Rights of Crime Victim Outweigh Freedom of the Press

(Jan. 20, 2010) In a recently published decision of September 29, 2009, the Austrian Supreme Court (Oberster Gerichtshof) held that a crime victim's right to privacy disallows the press to mention her name when reporting on her case, even if the victim had already been identified through earlier reporting in the press and even if the victim had changed her name because of the publicity surrounding her case (Oberster Gerichtshof, docket number 4 Ob 155/09m, Austrian subscription database RdB (last visited Jan. 15, 2009)). In addition, the Supreme Court held that the crime victim's need to be protected from the humiliation of having her image reproduced exceeded the interests of the print media enterprise in having the picture published.

In this decision, the Supreme Court upheld the decision of an appellate court (Oberlandesgericht Wien, decision of July 13, 2009, docket no. 3 R 43/09d-21, not published) that had granted injunctive relief to the plaintiff and thereby forbade the defendant, a publisher of print media, to name the victim when describing her case and also forbade him to publish childhood pictures of her and a contemporary sketch of her appearance. The plaintiff is the daughter of a convicted sex offender who had held her captive for 24 years, raped her, and begat seven children by her.

The Supreme Court held that the appellate court had struck the right balance between the public's right to be informed and the crime victim's right to privacy that had evolved from judicial interpretations of section 16 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch, Justizgesetzsammlung No. 1811/946, available at
), a provision which has protected the rights of a person since 1811, and of section 78 of the Copyright Act (Urheberrechtsgesetz, Bundesgesetzblatt no. 111/1936, as amended, available at
). Section 16 of the Civil Code protects the “personhood” of all human beings, and section 78 of the Copyright Act disallows the publication of personal images if this violates legitimate interests of the portrayed person.