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Freedom of expression on the Internet

03/03/2020 - Reading time: 3 minutes

Author

Stefan Adametz

Attorney at Law

Discussions on the Internet can be very emotional and stormy; especially when it comes to topics such as politics, climate change or migration insulting posts seem inevitable. But also in case of user ratings, traders, craftsmen or restaurant operators are often confronted with unpleasant or inappropriate comments.

What can be done if a discussion partner or the person making the rating adopts the wrong tone and/or gets personal?

Posts on platforms such as Facebook, Twitter, TripAdvisor or Google are read by a load of people within a very short time. Whether we can defend ourselves against postings that are either insulting or downright bad for business, depends on whether such postings are (objectively verifiable) allegations of facts or (strictly subjective) value judgements.

Admissibility of reviews

Even though each case needs to be assessed individually, it is to be stated that as entrepreneurs we must generally accept correct and/or fact-based but also subjective, fact-related (negative) reviews/value judgements (such as for example “I did not like the food”) – insofar as they are not insulting. We may, however, legally defend ourselves against (objectively) untrue and insulting reviews as well as other disparagements or even vituperations by seeking injunction, removal or revocation of a false allegation, the publication of a revocation statement and/or the payment of damages:

  • Defamation of business reputation (section 1330 (2) Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB)): This provision becomes applicable if incorrect allegations as to facts jeopardise an entrepreneur’s business reputation, income or (economic) progress; in connection with negative reviews, this may regularly be the case. However according to case law, reviews are often considered admissible if only details contained therein are untrue.
  • Libel (section 1330 (1) ABGB): covers cases of general degradation and depreciating reviews (value judgements) but also cases of depreciating allegations as to facts. With regard to admissibility – broadly speaking – it is assessed whether the interest of the entrepreneur to maintain his good reputation is to be attributed a higher value than the reviewer’s right to freedom of expression. While the latter reaches its limits at the so-called excessive valuation (Wertungsexzess), the Supreme Court shows a high tolerance as to the degree of admissible criticism.

No right to freedom of expression applies in case of untrue allegations as to facts or value judgements which (i) are based on untrue allegations as to facts or (ii) contain insults, mockery, disparagements or similar. Also in case of an unjustified accusation of a criminal act, freedom of speech reaches its limits. According to case law, reviews such as “Austria’s worst landlord – unfriendly, expensive, zero service, zero motivation” or comparing a seller to a “swine” or calling him “morally degenerate” is not admissible.

Depending on the content of the review, it is also possible that the constituent elements of a criminal offence such as slander, damage to reputation or defamation are met.

Admissibility of postings

According to case law, what needs to be taken into account – also from the freedom of speech perspective – in case of postings is the fact that “discussion forums on the Internet contribute to an open and lively discussion of questions important to society within a democratic public sphere”; because, in a democratic society, “extreme opinions, even if expressed by outsiders, contrarians or dilettantes must also be tolerated”. Still, it is in particular in the social media that the limits of what is socially tolerable and acceptable are exceeded, which makes it possible to take legal action (in particular, filing a request for deletion, if any): and thus, not only postings containing accusations such as “debrained green psychopath”, “lousy betrayer of the nation” or “corrupt clod” but also other personal (more or less strong) insults or mockeries had to be deleted.

Libel is already deemed to have been committed if swearwords such as “bonkers”, “stupid” or “swine” are used. In case of forums and chats, however, determining when a posting is to be categorised as libel depends on the tone commonly used in the respective forum or chat. With respect to “public figures” (e.g. politicians, artists, journalists, etc.) practising their profession, the limits of admissible criticism are generally wider than when it comes to private individuals.

Just as is the case with reviews, insulting or untrue postings may entail consequences not only under civil law (section 1330 ABGB) but also under criminal law.

To be able to achieve deletion of the unlawful posting/unlawful review, in many cases it may be necessary to take action no only against the reviewer or poster but also against the (commercial) operator of the website (media owner and/or hosting provider) and the operators of the individual Facebook pages and/or groups or Twitter pages enabling their users/followers to comment on their posts.

Conclusion:

All in all, we can see that the Internet is not a legal vacuum; both online and offline, we do not have to acquiesce to everything and/or we are not allowed to write anything that comes to our minds: Still, whether one is obligated to delete a posting or review on the Internet or whether one is entitled to have a certain posting or review deleted needs to be assessed on a case-by-case basis.

Depending on whether the case in question relates to an untrue allegation as to facts or a value judgement violating the honour, legal actions under civil, media and/or criminal law are possible; such legal actions can be filed not only against the author of a review or posting that has been objected to, but also against the operator of the website or rating platform which the negative rating/posting was published on, the latter being particularly important if the author cannot be identified or gotten hold of.

 

Author

Stefan Adametz

Attorney at Law