Oberster Gerichtshof, Urteil vom 15/01/2009 12 Os 135/07f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0124912
Date: 2009-01-15
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0115(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The applicant brought an action before the Landesgericht of Feldkirch (AT) alleging that the German respondent had infringed on the personal life of the applicant in publishing an article entitled "Fiona S. ... A woman in tears" on its website. The court granted the applicant monetary damages as well as an order, pursuant to Austrian press law, that the respondent must publish the judgment on its website. The OLG of Innsbruck (AT) overturned the order to publish the judgment on the appeal of the respondent on the basis that such an order could not be issued in relation to foreign press. Otherwise the judgment of the first instance court was upheld. The Austrian Procurator General lodged an appeal on grounds of law to the OGH (AT).
The OGH holds that the OLG of Innsbruck erred in its decision. It states, firstly, that an order to publish a judgment in the same press outlet in which the offense was committed can also be made in regards to a publishing company with its seat abroad.
A judgment ordering the publication of a judgment concerns a civil and commercial matter in terms of Article 1(1) Brussels I Regulation, which is to be construed broadly and independently. The decision to order the publication of a judgment is to be made according to criminal law of procedure. Such a decision is, however, only to be made on the application of, or, as the case may be, with the agreement of the injured party. Therefore, the matter is a civil one in terms of the Brussels I Regulation. Jurisdiction for an order to publish a judgment against the owner of a website who has its seat abroad arises out of Article 5(3) Brussels I Regulation. The impossibility of restricting an order to publish a judgment on a website to a particular territory, according to the jurisprudence of the ECJ in matters concerning violations of press laws (ECJ 7 March, 1995 - C - 68/93), corresponds to the exceptional nature of internet publishing and, therefore, must be accepted.