4 - Case 1: The corrupt politician

Summary

Case

A newspaper published an article accusing a well-known politician (called by name) of being corrupt. Does the politician have any claim against the journalist, the publisher or the editor-in-chief of the newspaper? If the politician was informed beforehand about the forthcoming article, is he entitled by law to stop the publication? Distinguish the following situations:

1. (a) The journalist's statement is not supported by any facts.

2. (b) The journalist alleged some facts related by a third person, which then turned out to be false.

Discussions

Austria

Operative rules

The politician may apply for a preliminary injunction to stop the publication. In situation (a), the politician has a claim against the journalist for the forbearance of defamatory statements, the revocation of the false statement and its publication, and for compensation of pecuniary loss. The politician may sue the publisher for compensation of non-pecuniary loss. In addition, the politician can claim for a right of reply. In contrast, the politician probably has no claim under situation (b), but this depends on several conditions.

Descriptive formants

If the politician was informed beforehand about the forthcoming article, he may apply for a preliminary injunction pursuant to § 381 EO if ‘such an injunction seems to be necessary for the avoidance of … an unrestitutable damage’. Under this provision, only objective endangerment (objektive Gefährdung) is required. After an ordinary hearing the injunction may be removed.