General News

VfGH on the right of reply: Insertion fee unconstitutional!


Anyone affected by incorrect or misleading reporting of facts in a periodical medium may demand that the media owner publish a counterstatement in that medium. A court order for publication must be complied with immediately, irrespective of any appeal by the media owner, and the counterstatement must be published. However, if the media owner's appeal is subsequently upheld, the person requesting the counterstatement was obliged to pay an insertion fee for the unjustified publication of the counterstatement under the previous legal situation.

On March 15, 2023, the Constitutional Court overturned the relevant provision of the Media Act as unconstitutional. In the case in question, the applicant, who was only able to successfully obtain an order for publication of the counterstatement (both in the print edition and in the online edition) in the first instance, would have had to pay around € 236,000.00 (€ 26,000.00 for print publication and € 209,000.00 for online publication).

This amount resulted from the media owner's tariff-based insertion costs. The applicant, who ultimately lost the counterstatement proceedings, appealed to the Constitutional Court (VfGH) against this payment obligation on the grounds of the unconstitutionality of the provision in the Media Act which had previously regulated the obligation to reimburse the insertion costs on the basis of the media owner's respective tariff. In its ruling, the Constitutional Court stated that "the amount of the insertion fee specified in Section 17 (5) of the Media Act, which the person who has caused a counterstatement that ultimately turns out to be unlawful is obliged to pay, is disproportionate: it exposes the person concerned to an economic risk that can no longer be sustainable for him."

In the opinion of the Constitutional Court, "this previous regulation also harbors the danger of deterring those affected from asserting a counterstatement from the outset and thus also limiting the general information function of the right of reply." The legislature now has until June 30, 2024, to amend the repealed provision, for example with regard to the duration of publication of the counterstatement. Particularly in the case of a website, the legal obligation to publish the counterstatement for a period of one month results in very high intervention costs if the applicant loses in the appeal proceedings after the publication of the ordered counterstatement by the media owner, as was the case in the VfGH.