The assertion that someone is a “rotten traitor”, a “corrupt oaf” and member of a “fascist party” is insulting and defamatory pursuant to section 1330 para 1 Austrian Civil Code.
A private Facebook Service user, registered under the name of “Michaela Jaskova”, shared on that user’s personal page an article from a daily newspaper – consisting of a photograph of Dr. Eva Glawischnig-Piesczek, then chair of the Green Party, and the accompanying text: ‘Greens: Minimum income for refugees should stay’, and ‘Against blue-black [conservative – liberal] plans: “We will do everything to fight against these also by way of legal proceedings”’ – and posted the following comment: “rotten traitor. This corrupt oaf has not earned a single cent with honest work in all her life, but blows our tax money into the arse of the smuggled-in invaders. Prohibit at last this green fascist party.” This post could be accessed by any Facebook user.
Dr. Glawischnig-Piesczek asked for a preliminary injunction, protecting an identical claim pursued in her complaint, directing Facebook to cease and desist from publishing and/or disseminating photographs showing her if the accompanying text contained the assertions, verbatim and/or using words having an equivalent meaning, that she was a “rotten traitor”, and/or a “corrupt oaf” and/or member of a “fascist party”.
Like already the court of first instance, the Austrian Supreme Court granted the preliminary injunction and held in essence:
The incriminated assertions, which clearly refer to the plaintiff depicted in the article commented on, in light of the lack of any concrete assertion of a behavior with a nucleus of facts the truth of which can be proven, are offending value judgments in the sense of section 1330 para 1 Austrian Civil Code. The incriminated statements aim at offending, insulting and defaming the plaintiff. Therefore, the plaintiff is entitled to ask for an injunction ordering the defendant to cease and desist from publication and/or dissemination of photographs depicting her in connection with the incriminated assertions.
To Facebook’s defense that it would go too far to prohibit also the publication and/or dissemination of words having an equivalent meaning because this would result in a general obligation to monitor ex-ante the information which it stores, the Austrian Supreme Court, pointing out the decision of the CJEU of 3 October 2019 (C-18/18 [Glawischnig-Piesczek/Facebook Ireland] EU:C:2019:821), replied that the preliminary injunction specifically mentioned the conduct required from Facebook and did not require an autonomous examination on part of Facebook. The preliminary injunction, according to the Supreme Court, was also sufficiently specific and pointed out in no uncertain terms why the comments were to be regarded as unlawful. Also, the preliminary injunction was not excessive; it did not create an unproportional duty to monitor stored information for Facebook.
Already the Court of Appeal had refused to grant Facebook’s request, made for the first time in the appellate proceeding, to limit the preliminary injunction to Austria. This issue was not raised again by Facebook in the proceedings before the Supreme Court.