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The Sigrid Maurer Case - The impossible proof of truth

Sigrid Maurer, a member of the Austrian Green Party and the Austrian parliament, was recently convicted of defamation by a court of first instance. The reason was a Twitter posting she had posted along with an obscene message she had received from the Facebook account of the owner of a beer shop. In other postings, she called on people to bring the beer shop owner to account while providing a link of the shop owner's homepage and in addition, the opening hours of the beer shop, on her Twitter page. This triggered a "Shitstorm" on the Internet, which led to poor online ratings of the beer shop, and hate comments against the owner. Because Sigrid Maurer could not prove that the beer shop owner himself had written and submitted the obscene Facebook message to her, the court convicted her of defamation. The court of appeal has now overturned the decision against her and referred the case back to the court of first instance for re-trial.

The court of first instance had to examine whether defamation according to Section 111 of the Austrian Criminal Code (StGB) was fulfilled. Section 111 StGB stipulates that a person commits defamation, if such person accuses another person of a contemptible quality or attitude in a manner perceptible to a third party or of dishonourable conduct or conduct contrary to morals, which is capable of making the other person contemptible or disparaging in public opinion. According to Section 111 para 2 StGB such defamation has an increased penalty range if the defamation is accessible to a broad public. Considering the publication on Twitter, the public prosecutor saw an increased penalty justified.

According to Section 111 StGB the offender shall not be punished if he or she proves that the claim made is in fact true. Therefore, Sigrid Maurer presented the messages sent to her from the Facebook account of the beer shop owner as evidence that her statements were factually correct. She drew attention to the identical punctuation between the Facebook message and the advertising on the Facebook page of the beer shop owner as well as a tweet posted from his Twitter account. All these texts contained multiple exclamation marks, which according to Sigrid Maurer prove that the beer shop owner himself was the author of these texts. However, the court of first instance ruled that Sigrid Maurer had not managed to provide the so-called proof of truth. On the one hand, because the beer shop owner argued that other people had access to his laptop and consequently to his Facebook account and, on the other hand, because Sigrid Maurer could not prove that the beer shop owner wrote any text presented as evidence. Hence. the court of first instance convicted Sigrid Maurer of defamation according to Section 111 para 2 StGB.

In its decision, the Court of Appeal stated that the obscene messages were sent from the laptop and Facebook account of the beer shop operator. This may be regarded as admissible circumstantial evidence. The beer shop owner´s allegation that other persons had access to the laptop and may have sent the obscene messages does not sufficiently rebut this circumstantial evidence. Based on the the strong circumstantial evidence available, the beer shop owner must present concrete circumstances that the messages do not originate from him and not merely represent theoretical possibilities. According to the court of appeal, the court of first instance set the hurdle for the provision of the proof of truth for Sigrid Maurer unattainably high and de facto impossible to fulfil. The Court of Appeal therefore referred the case back to the court of first instance for re-trial.

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