The comprehensive "Hate on the Net Prevention Act" ("Hass-im-Netz-Bekämpfungsgesetz", BGBl. 148/2020) introduced numerous legal innovations to combat offensive or inflammatory acts on the internet and social media.
The new Section 20 (1) of the Austrian General Civil Code (ABGB) now provides for the right to injunctive relief and removal due to violation of personal rights, which has already been recognized in case law. From the perspective of labour law, a specific innovation is found in Section 20 (2) ABGB: if the reputation or privacy of an employee is violated in a medium in connection with his/her activity, the employer – irrespective of the employee's rights – has its own claim for injunctive relief and removal, if this conduct is likely to significantly impair the employers possibilities to deploy the employee or to damage the employer's reputation. The same applies to volunteers and corporate bodies.
The purpose of the employer's entitlement is to cover those situations in which employees are exposed to hate postings because of their official activities, which consequently makes their work more difficult and, as a result, the economic sphere or the employer's reputation is affected. The prerequisite for a claim for injunctive relief and removal is the violation of an employee's reputation or privacy in a medium according to Section 1 (1) of the Austrian Media Act (MedienG) and a connection to the employee's work. The further requirement of the suitability of an act to significantly impair the possibilities to deploy the employer or to damage the employer's reputation is given if the employee falls ill because of the psychological pressure and can no longer perform his job or has to be moved to another position. According to the comments in the materials pertaining to the law, it should even be sufficient that it is more difficult for the employer to find someone for this job.
The assertion of the claim is not dependent on the consent of the employee. The employer has no obligation to assert a violation of personal rights in court, in particular not on the basis of his duty of care under labour law.
If the person who has committed a violation of personal rights or from whom such violation is threatened uses the service of an intermediary for this purpose, such intermediary may also be sued for injunctive relief and removal. If the conditions for an exclusion of liability under the E-Commerce Act exist, the intermediary can only be sued after a warning has been issued. Service providers under Section 13 of the E-Commerce Act are not considered intermediaries.
If the violations of personal rights also violate human dignity, the claims can also be enforced on the basis of the newly created mandate procedure under Section 549 of the Austrian Code of Civil Procedure (ZPO).
Parallel to Section 20 (2) ABGB, Section 33a MedienG contains the employer's right to file a motion for withdrawal of the media products intended for dissemination or deletion of the relevant parts of the website. With regard to the prerequisites, the claim is the same as in Section 2 (2) ABGB, but instead of the violation of reputation or privacy, Section 33a MedienG focuses on the criminal acts of defamation (Section 111 of the Austrian Criminal Code (StGB)), insult and mockery (Section 115 StGB), defamation, (Section 297 StGB) or dangerous threats (Section 74 (1) no. 5 StGB).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
