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'Hate speech' in a television programme: Is the broadcaster liable?


Recently, the Constitutional Court (VfGH) had to deal with "hate speech" in a television programme. Television is subject to the provisions of the AMD-G (Audiovisual Media Services Act). According to Section 30 AMD-G, audiovisual media services must respect human dignity and the fundamental rights of others with regard to their presentation and content and must not incite hatred or violence on the basis of race or nationality.

The case before the Constitutional Court concerned a live broadcast by a private television broadcaster. The sole content of the programme was a conversation between the presenter and his studio guest about how the studio guest had personally spent the recent period before the interview, which had been shaped by the coronavirus pandemic. During this conversation, the studio guest referred to the Covid-19 virus as a "gook virus" and generalised Chinese nationals as inferior and primitive. The studio guest was subsequently convicted under criminal law for incitement to hatred (Section 283 StGB). Komm-Austria conducted proceedings against the broadcaster and found a violation of § 30 AMD-G. This conviction was confirmed by the Federal Administrative Court. The broadcaster lodged an appeal against this with the Constitutional Court because it considered its freedom of the media, which is protected by Article 10 of the ECHR, to have been violated. 

The broadcaster argued that it could not be held responsible for the statements made by the studio guest. In its decision, the Constitutional Court emphasised that "it is part of the essential role of mass media" to make opinions represented in democratic society visible in public discourse by allowing people to express their relevant opinions directly in the broadcasts. This also applies to critical, offensive or shocking opinions". In principle, these are the responsibility of the people who express them.

A media organisation is only responsible in special constellations if the rights guaranteed in the ECHR (European Convention on Human Rights) are seriously infringed, for example by hate speech. This editorial responsibility must be exercised in such a way that either the interview in question can be categorised accordingly in the overall context of a programme or a discussion panel must be put together accordingly. In the present case, however, the person making the comment was the only studio guest and the presenter even asked him to "speak plainly". As the broadcaster therefore failed to fulfil its editorial responsibility, his complaint was not upheld.