Hotel Owner Files Libel Suit Against Reviewer For Calling Nazis Nazis, Gets Support From Austrian Court
from the weird-flex dept
Turns out the truth is no defense to accusations of libel… at least not in Austria. And not when someone’s reputation needs to be protected from [rereads article] substantially true statements. The standard for defamation in Austria comes nowhere close to what we’re used to in the United States. The bar is low for the plaintiff and a bunch of insanity for the defendant who said true things and still got dinged for it. (h/t Techdirt reader Rose Crowell)
Here’s the background, as detailed by Philip Oltermann for The Guardian:
A German man is being sued by the owners of a four-star hotel in Austria after posting online reviews in which he criticised them for decorating their lobby with a portrait of a “Nazi grandpa” in a uniform adorned with a swastika.
The man, named in court documents as Thomas K, and his wife visited the hotel in the village of Gerlos in the Tyrolean Alps last August. After check-in, they noticed two framed pictures on a wall near the hotel’s entrance, hung above a flower arrangement. One showed a young man wearing a uniform with an eagle and swastika badge, the other an older man.
Using a pseudonym, K posted reviews on Booking.com and TripAdvisor about a week after his visit, one in German and one in English, under the subject header: “At the entrance they display a picture of a Nazi grandpa.”
The review went on to question the wisdom of posting photos of people in Nazi uniforms at a hotel entrance, suggesting it might be the owners’ way of sending some sort of message about their biases or sympathies.
The hotel owners were not pleased to be subtly equated to the photos they had placed at the hotel entrance, so they tracked down the reviewer using the phone number provided to Booking.com and sued him for defamation.
First, the owners claimed that the pictures of the men in “Nazi” uniforms were actually just pictures of relatives who were members of the Wehrmacht, not the Nazi party. So, they were just in the army controlled by Nazis, not actually card-carrying Nazis, which seems to be splitting hairs just a bit much when the photos showed a person in a Nazi uniform. They also claimed these were the only photos they had of these relatives, so I guess the guest should have been more understanding.
That was one of the libel claims — one made in a country where it’s apparently possible to defame the dead. Except it wasn’t actually libel. It was a fact.
After researching the identity of the two men in the photographs at the German National Archives in Berlin, K was able to prove that both of the men had in fact joined the Nazi party, in 1941 and 1943 respectively. The hotel’s owners said they had not been aware of their relatives’ membership.
Right, so that’s settled then. They were Nazis. The reviewer called them Nazis. It’s no longer a question of libel. Except that somehow it still is.
The court presiding over the case issued an injunction. Not because of the Nazis being called Nazis but because of something the court decided the reviewer said, even though there’s really nothing in the review but a statement of (apparently unprotected) opinion.
The Innsbruck court nonetheless took the unusual step in July of granting the hotel a preliminary injunction against K, arguing that his review had also implied that the hotel owner shared or sympathised with National Socialist ideas.
But this is what the reviewer actually said:
This made us wonder what the hotel owners are trying to tell us with this image. This incident speaks volumes about the current state of affairs in this region of Austria.
That’s speculation. It’s not flattering speculation but it isn’t — or at least it shouldn’t be — libel. But that’s the initial conclusion the court has reached. Why? Because in Austria, the owners’ interest in “protecting their reputation” is more important than hotel guests expressing their opinions.
I’m not sure what the Austrian expression for “fucked up” is, but that’s what this is: libel that never happened based on factual assertions that somehow have managed to keep a disgruntled reviewer tied up in court.
Filed Under: austria, defamation, hotels, libel, nazis, reviews, truth
Comments on “Hotel Owner Files Libel Suit Against Reviewer For Calling Nazis Nazis, Gets Support From Austrian Court”
Somewhere, Shiva Ayyadurai is booking a flight to Austria.
Re: Re:
Hasn’t Austria suffered enough?
Re: Re: Re:
Well, before they did it to themselves, so it doesn’t count.
what’s that i hear? is it the sweet voice of barbra?
yes, yes, i believe it is.
Well...
There is a town in Austria called "Fucking".
Apparently they’ve given up trying to replace their road signs, which get stolen.
Re: Well...
Yep– it has an entry in the English Wikipedia.
They could make money off postcards– but do they?
I imagine a zonked-out "Jeff Spicoli" (Sean Penn) posed in front of a local photo, with a bright inscription, "Hey, Man, would you believe? We’re in F*cking Austria!"
Re: Re: Well...
Look it up on Google Earth, which even points out where the sign should be. It is not big enough to monetize it famous name.
Re: Re: Re: Well...
Well, it’s not so much the size – but the objections of the local community that would probably prevent monetization. To wit, a fellow villager tried marketing "I Like Fucking in Austria" shirts but got violent reprisals from the others.
On the other hand, when you have masses of tourists traveling to your place just to have sexual intercourse in front of a sign, you kinda see the point of the locals’ annoyance.
Re: Re: Re:2 Well...
Give them a massive fine and a t-shirt that says "I got fucked while fucking in fucking Fucking Austria."
Re: Re: Well...
Someone decided to make some money off of the name, and created a Fucking Hell beer.
It’s stories like this that make me hope that Elon Musk wins the defamation lawsuit against him. Strong defamation laws always seem to be used against normal people by more powerful interests.
Re: Re:
I hope he loses since he, ya know, kinda, totally committed defamation bro.
Re: Re: Re:
With you around, why do we need courts and judges?
Re: Re: Re: Re:
Well, that depends on which country’s laws defamation is being defined by, Rocky.
Under US law, Musk’s statements may constitute defamation (the only questions are whether an allegation of pedophilia is a statement of fact or opinion, and whether the plaintiff can prove on the balance of probabilities that they are not a pedophile).
Under UK law, where the burden of proving truth to use it as a defense falls on the defense, Musk has probably committed defamation.
Under, say, Indonesian law, where truth isn’t a defense to charges of defamation (only a mitigating factor), Musk has almost certainly committed defamation.
Why did they put the pictures up in public view and then complain when people noticed them? Wasn’t that the point of it?
Unless the visitors went into some hidden private room in the hotel, maybe hidden behind a bookshelf or something while searching for clues to the last crusade….
Re: Re:
"Why did they put the pictures up in public view and then complain when people noticed them?"
From what I understand, that’s not what they’re complaining about, just the fact that people refer to the guy in reviews as a Nazi.
I had to dig into this deep
I wanted to find out what the logic was since the story didn’t bother. Apparently "Wehmacht" was the name of the army way before the Nazi’s decided to name their entire military that. It was the Weimar Republic Land Forces. You can google up their old WW1 ribbons. It’s looking like the argument here was that they were pre-nazi pictures, and nazi’s didn’t exist yet. So if you really wanted to split hairs, and I guess they did, that was the argument. That they later became official party members should make it a moot point. They self identified as nazi’s.
Re: I had to dig into this deep
Nazi hotel with a nazi background, celebrating their heritage.
How dare anyone point it out.
Re: Re: I had to dig into this deep
How did they nazi this coming?
Re: I had to dig into this deep
If that’s the logic, then wow that’s dumb. First of all, the swastika didn’t become a symbol worn by military officers anywhere until after the Nazis took over, so given that the man is clearly wearing a military uniform that clearly includes a swastika, it’s clear that at the time that picture was taken, the Nazis were, at a minimum, in control of the army the guys were in; therefore, there is absolutely no chance that these were “pre-Nazi” pictures. Even as far as splitting hairs go, this doesn’t hold up under its own terms.
And, as you pointed out, they would become official members of the Nazi Party and self-identified as Nazis, making the argument completely moot. They were Nazis under just about any reasonable definition of the term, and they called themselves Nazis; the owners have no good reason to complain about other people calling the people in the pictures Nazis. It’s immaterial whether or not they were Nazis when the picture was taken. The fact is that, whether the owners like it or not or knew it or not, those people were actually Nazis. They should just suck it up and deal with it.
Re: I had to zof into this latrine deeper
Oh look. How unsurprising you’re such a piece of shit that you’d defend actual Nazis against the claim of being Nazis.
Re: Re: I had to zof into this latrine deeper
If he’s trying to “defend actual Nazis against the claim of being Nazis” here, then even he’s acknowledging that he can’t:
In other words, he notes that the owners’ claims, as he understands them, don’t change the fact that these men were actual Nazis, implying that the lawsuit should have no merit based on the facts as we know them even if interpreted most favorably for the plaintiffs.
Re: I had to dig into this deep
It’s revealing how you’ve put more research and thought into your post about Nazis than you have in any other post of your recently.
Re: I had to dig into this deep
"It’s looking like the argument here was that they were pre-nazi pictures, and nazi’s didn’t exist yet."
I think you missed a salient point from the OP:
"After check-in, they noticed two framed pictures on a wall near the hotel’s entrance, hung above a flower arrangement. One showed a young man wearing a uniform with an eagle and swastika badge, the other an older man."
When the imagery depicted consists of someone wearing a swastika whether the armed forces he’s part of existed before the third reich or not becomes a rather redundant question in whether the "nazi" label was merited or not.
Re: Re: I had to dig into this deep
To be clear, I don’t think that Zof was actually defending the owners here. He read the complaint (or other reports on it), gave his interpretation of what the plaintiffs’ argument is, and then notes that not only is that argument splitting hairs, but also:
In other words, he does not actually believe that the plaintiffs’ argument actually has merit; he is just trying to clarify what the argument is. At worst, Zof is playing devil’s advocate here, but even then, he notes that, if his interpretation is accurate, that argument still shouldn’t work.
Sure, even without considering the admission that the men were part of an army that was under Nazi control or the fact that they were members of the Nazi Party, this lawsuit is still dumb on its face, and other questions should be redundant, as you say. However, there are many ways to determine whether a lawsuit is stupid.
Zof is saying that, even under the most charitable view of the circumstances and throwing the owners quite a few bones, in the end, this lawsuit is dumb when you consider the full story. You’re saying that, even ignoring facts that we learned later and other circumstances, this lawsuit was dumb from the onset. Both are perfectly valid and consistent with each other. It was a dumb lawsuit then, and it’s even dumber now. I think we can all agree on that, even if our reasons may differ.
Re: I had to dig into this deep
You mean you had to dig deep to pull that out of your ass.
Re: Re: I had to dig into this deep
I don’t normally defend Zof, but you’re missing his point. He was only repeating what the plaintiffs are arguing. He is in no way defending their argument. He even specifically notes that the argument should be mooted by the fact that the men pictured were actually Nazis. So if he “d[u]g deep to pull that out of [his] ass,” he is essentially saying that even the most favorable argument for the plaintiffs that he can come up with shouldn’t’ve been enough to win the day.
Re: I had to dig into this deep
I don’t understand why this comment was flagged. It was respectful and ultimately agrees with the conclusion everyone else seems to have come to: there is no reason why the owners ought to win this lawsuit.
AFAICT, here’s what Zof is doing here:
He read the complaint (and/or other reports on this lawsuit), and is doing his best to interpret the plaintiffs’ argument.
He notes that this argument, as he understands it, is splitting hairs.
Even if this argument has any merit (which he’s not saying it does), it shouldn’t matter because the men were actually Nazis, and whether they actually joined the Nazi Party before or after the pictures were taken is a moot point.
That is, he’s saying that even if he interprets everything as favorably for the plaintiffs as possible, he still wouldn’t believe that their argument is sufficiently convincing.
Sure, he throws some shade at the article in the process, but his post is neither trollish nor meritless, and his final conclusion is fully consistent with pretty much everyone else’s. To the extent he’s defending either the Nazis or the owners, it’s only as a devil’s advocate, and he immediately counters the defense he is presenting. I don’t see any part of his post that I really disagree with other than that I think Tim Cushing did try to explain the owners’ argument, regardless of how well he did.
Unless it’s obviously spam, people should actually read posts before flagging them. Even Zof makes good points sometimes. I don’t understand why he keeps reading and commenting here given his obvious distaste for Techdirt’s articles and writers and the fact that he almost always disagrees with the majority of the community on most subjects, but he’s nowhere near as bad as Blue or other trolls. He may frequently troll, but he’s not always bad.
Re: Re: Actions, and the reputations built on them, have consequences
Unless it’s obviously spam, people should actually read posts before flagging them.
Counter-explanation: ‘The boy who cried wolf’. Once someone gets a reputation of a troll and/or a liar then even if they do say/post something worthwhile people aren’t likely to pay any attention to it, and are likely to flag it by default due to the poster’s toxic reputation.
If a commentor doesn’t want people to flag their stuff by default then it helps not to regularly act in a manner that their comments are flagged and their reputation becomes sullied to the point that people assume that their comments are a waste of time at best.
Re: Re: Re: Actions, and the reputations built on them, have consequence
Oh, sure. I totally get that, and I would not say that Zof necessarily deserves fair treatment.
I was just saying what I think people should do. In my opinion, flagging a post is a more extreme thing to do than argue against it or ignore it. In the context of the “Boy Who Cried Wolf”, it’d be roughly equivalent to kicking him out of the village by force before he can say anything rather than just ignoring him or dismissing his claims as lies. They’re all understandable actions to take when dealing with a serial troll/liar, but I think flagging a comment should require more thought than essentially acting like an internet filter for the entire community and flagging anything that Zof says so that others need to take additional action to see it.
In other words, I’m not asking for fairness on Zof’s behalf but on others’ behalf.
Re: Re: Re:2 'Warning: Opening this door can result in facepalms'
In the context of the “Boy Who Cried Wolf”, it’d be roughly equivalent to kicking him out of the village by force before he can say anything rather than just ignoring him or dismissing his claims as lies.
I’d compare it more to a large room where anyone can talk and anyone who wants to can listen with no effort on their part for unflagged comments. Flagging then would be the equivalent of partitioning a particular person off with a warning on the partition, such that what they were saying was still audible to anyone who ducked into the partitioned sub-area but people had to make an active choice to hear them.
Re: Re: Re:2 Actions, and the reputations built on them, have consequ
"In the context of the “Boy Who Cried Wolf”, it’d be roughly equivalent to kicking him out of the village by force before he can say anything rather than just ignoring him or dismissing his claims as lies"
Which, in the context of that story, would actually have saved the villagers a hell of a lot of hassle.
Re: Re: I had to dig into this deep
"I don’t understand why this comment was flagged."
Reflex. People are used to his posts being worthless, so they flag them as soon as they see his shitty avatar.
Unfair perhaps, but therein lies the moral of the boy who cried wolf – if you act the asshole all the time, don’t expect fair treatment on the one time you decide not to be one.
Man, they’ll call anyone Nazis these days.
Don’t they know the term can only be used to refer to Hitler himself, and maybe a few of his best-known lieutenants?
Re: Re:
I think the Simon Wiesenthal Center would like to engage you in a short conversation….
Re: Re: Re:
I think it’ll be a long conversation, and he’ll learn a lot about how to curse someone out properly.
What the hell, Austria?
So we have a statement about a dead man that could be considered an opinion but, even as a statement of fact, would be substantially true just based on the complaint and is, in fact, was definitively prove to be actually true in court in this case. Not to mention the fact that the statement would be a reasonable assumption based on what the defendants knew at the time. Despite all of this, a judge in Austria is granting a preliminary injunction against something a German posted on a U.S.-based website while in Germany, and which is a combination of substantially or actually true statements of fact, statements of pure opinion, and statements of opinion based on disclosed facts, because, if you squint while reading between the lines, it appears that the review may also imply something that the judge considers defamatory despite the fact that, even if you take that as something the defendant said, it would be a statement of opinion based on the definitely true fact disclosed in the same review.
In the U.S., this probably wouldn’t have gotten past the dismissal stage, and even then, it definitely would have lost in summary judgement. It’s even possible that jurisdiction would’ve been an issue, though that would definitely be the only part of this that could’ve landed in the plaintiffs’ favor. Also, the preliminary injunction would’ve been unconstitutional and would either have been rejected by the lower judge or quashed on appeal.
Hell, even under U.K. or Australian laws, which make defamation lawsuits harder to defend against than U.S. laws, I highly doubt that this lawsuit would’ve gotten a preliminary injunction at this point under these facts.
Austrian libel law is clearly terrible. You shouldn’t be able to sue for defamation because a guest from another country stayed in your hotel, saw a picture you put on the wall of your hotel in plain view for the public to see of a man wearing a swastika—one who you knew was a member of a militia under Nazi control and who, it turns out, was actually a member of the Nazi party—and then later that guest went home and posted a review of your hotel on a U.S.-based website that criticized the picture, called the man who was depicted a Nazi, and suggested that displaying a picture of a Nazi for all to see may not speak well of the owners of the hotel, supposedly implying that you may be a Nazi sympathizer. And you certainly shouldn’t be able to get a preliminary injunction for that. Even if the burden of proof is on the defendants to prove that the statements are true or opinion—which is stupid and backwards—and even if freedom of speech is less protected in Austria than in the U.S., it’s still incredibly dumb that this could happen.
How to say it in Austrian (German)
When I was growing up there, in my teens, the expression was "abgefukt". A literal translation, with correct grammer.
But they would more likely say "Wahnsinnig. Sehr wahnsinnig", which translates to ‘Demented. Very demented’.
Re: How to say it in Austrian (German)
I thought I was just joking in 1978 when I suggested "upgefuckt" as a correct translation to a US Army comrade, but maybe I started something. On the other hand, it was more likely obvious to a POSITA.
crazy Streissand Effect, with a twist:
Hiding the hotel name because they didn’t want to affect their hotel’s reputation did actually much worse: they did a classic "das Kind mit dem Bade ausschütten" … they threw the baby out with the bathwater, now the entire village of Gerlos is tainted by this.
Now practically the entire resort is associated in internet search results with nazi hotels, even though most of them might have nothing to do with that topic.
Interesting
Wondered if the swastika and uniform was legal:
https://en.wikipedia.org/wiki/Post%E2%80%93World_War_II_legality_of_Nazi_flags#Austria
Law seems pretty strict.
Re: Interesting
I expect there are a gazillion pictures in Austria of relatives/ancestors in German uniforms carrying the eagle & swastika emblem, since after the Anschluss in 1938 Austria became part of Germany. Easy enough to ban the Nazi flag, but all the pictures of people who were in the army during the next 7 years?
However, these guys were Party members. I suppose it’s possible that the hotel owner didn’t know that, as it wouldn’t have been a popular topic of conversation after the war.
If they care about their reputation ...
Then maybe they shouldn’t proudly display photographs of Nazis. And if the court cares about their reputation they should at least allow people to suffer the organic consequences of their free speech instead pandering to, what any reasonable person might conclude is a Nazi sympathizer.
Pretty Clear
Reviewer: This made us wonder what the hotel owners are trying to tell us with this image.
Court: No need to wonder, let us spell it out to you.
It’s not splitting hairs at all to believe your relative was just in the wehrmacht if you’re German or Austrian. Most German and Austrian men, and many young boys, were conscripted into the wehrmacht by the time the war ended. It’s unkind to assume that all of them were actually Nazis.
Re: Re:
That is correct. A lot of people had no choice but the person displaying the photo is choosing to publicly display a photo with their relative wearing the uniform of a regime that committed mass genocide, instead of a photo of them at a picnic or decorating a Christmas tree. That says a lot.
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The article says "They also claimed these were the only photos they had of these relatives". Though I suppose that they could have put stickers over the Nazi symbols or something.
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So perhaps keep the photo displayed in private, rather than the lobby of your hotel. Prticularly given that austrian law is pretty strict about the public display of Nazi symbols
Re: Re: Re:2 Re:
Oh, I SEE. You’re for an authoritarian state preventing display of images rather than prohibiting actions.
Exactly how do you differ from "Nazis" except in the specific forbidden images?
Re: Re: Re:3 calling Dr Godwin to the white courtesy phone please
One of them committed genocide. The other commented in a way you found unfavourable, about an existing law.
Re: Re: Re:3 Re:
I’m gonna have to step in here, sorry.
One, I went to Germany (and then to Austria) in the ’60s, as a soldier in the US Army. We were often stationed in quarters that were built by the Wehrmacht during the war, and I can’t count how many times we lived with swasticas cast into the concrete walls. In some cases, we tried to fill them in, but it was obvious what was underneath.
Two, while stationed there I spoke with many a survivor of the war. Old, young, men and women, I wasn’t particular. Most of them opened up to me (and incidentally, giving me a pretty good education in ‘street’ German). I learned that most draftees were automatically members of the Nationalist Party, whether they liked it or not – it was expected of them. If superior officers suspected, or found, that they were not living up to party expectations, they weren’t just drummed out of the service, they likely didn’t live to see the end of the day. Strong incentive, that.
Three, several European countries have similar laws on the books, and here I’m speaking of both Allies and Axis. The older generations know what went down, they don’t need seemingly constant reminders. They wrote the laws because they somehow knew that younger people (or die-hard fanatics) would try to "take up the flag", and would want all such paraphenelia they could get their hands on. The thinking back then was "If it’s out of sight, then it can’t self-resurrect". Sadly, it doesn’t work in the long run, as our own country’s troubles right now bear this out… in spades.
That last point begs the question, what was the Court thinking? Moreover, did the defense attorney even point out to the Court this particular law? Inquiring minds want to know.
sumgai
Re: Re: Re:4 Re:
That is all very interesting. Thanks for sharing.
It doesn’t really change my opinion of the owners, the lawsuit, Austrian libel law, or the judge’s decision to impose a preliminary injunction here, but I don’t think that was your point. It does change my opinion, somewhat, of the men in the photos, though I still think that calling an unwilling or reluctant Nazi a Nazi is libelous, nor do I think that the defendants’ vaguely implied speculation on the owners’ motives for hanging the photos of Nazis wearing a swastika was unreasonable, especially given the prohibitions on Nazi imagery in both Germany and Austria. But again, I don’t think that that was your point, either.
Re: Re: Re:3 Re:
You misunderstand. James isn’t saying he approves of the Austrian law against Nazi imagery. He’s just noting that this lawsuit and the court’s decision is particularly odd considering that that law exists.
Re: Re: Re: Re:
In these days of Photoshop and other similar software it would be a simple thing to keep the faces of the treasured relatives.
Re: Re: Re:2 Re:
Assuming you can get a decent digitization of the original photograph, which requires more than a handheld camera.
Re: Re: Re:3 Re:
You can buy a combined scanner/printer that does a better scan than a smart phone for a hell of a lot less than a smart phone. I bought my current scanner/printer for $45, brand-new!
Whatever the outcome of the case may be, it isn’t going to make the hotel look any better for it.
What to do..
What would happen in the USA, if a persons picture of them Standing over the corpse of an American Indian..
Many with Buffalo.. including a STACK 20+ foot high.
That's not a knife
Even though it really looks like one and cuts like one, it’s not a knife… … not unless Dundee says it is.
Same for things people say… if Dundee says it’s so, it’s so… if Dundee says it’s not, then it’s not!
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