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


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  1. icon
    bhull242 (profile), 17 Sep 2019 @ 11:49am

    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.


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