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Freedom of expression: (exceptionally) priority over the right to use the work


In the media and communications sector, conflicts between fundamental rights often arise. In these cases, it is up to the courts to decide which right takes precedence in a specific case. Most often, the right to freedom of expression on the one hand and the right to respect for private and family life on the other clash in disputes. 

Less frequently, the courts have to weigh freedom of expression against an encroachment on rights to use works under copyright law. The Supreme Court was recently faced with this task in injunction proceedings brought by the Austrian Freedom Parliamentary Club (FPÖ) against an association that had posted on its Facebook page the text "Never again fascism! Demo gegen Corona-Leugner und FPÖ" (Never again fascism! Demo against Corona deniers and FPÖ). The association used a photo of the FPÖ's club chairman Herbert Kickl and Kickl's announcement that he would take part in the Corona demo on Sunday. The rights to this photo belonged to the plaintiff parliamentary club of the FPÖ. The defendant association, which published the photo without the consent of the photographer and also without the consent of the rights holder (parliamentary club), objected to the action, inter alia, that it was a permissible quotation of the picture and thus a free use of the work, and also invoked freedom of expression. After the defendant association had lost at first instance, it then won at second instance and this decision was confirmed by the Supreme Court. The deciding factor for the Supreme Court was that the defendant association had reacted directly to the call for a demonstration by the FPÖ parliamentary club by publishing a photo of Herbert Kickl on Facebook and had critically addressed it. In doing so, according to the OGH, the association not only exercised its right to freedom of expression, but also "prepared a counter-demonstration that is also protected by fundamental rights". 

The OGH concluded that in this case the fundamental right to freedom of expression was not exercised or was exercised inadequately "without interference with copyright or ancillary copyright". Accordingly, because of the exercise of the fundamental right to freedom of expression by the defendant association, the publication of the photo as a quotation was justified. In practice, however, it should be noted that this decision is not a carte blanche for encroachments on rights to use works.