Defamation

Defamation under § 111 of the Criminal Code occurs when someone, in a manner perceptible to third parties, attributes a contemptible characteristic or disposition to another person or accuses them of dishonorable conduct or conduct contrary to public morals, which is capable of making them contemptible or disparaging them in public opinion. It concerns attacks on one’s good reputation, for example, through rumors, disparaging attributions, or public accusations.

The law protects a person’s social standing and thus their social recognition. Criminal liability is not tied to subjective offense, but to the objective suitability of the statement to damage a person’s reputation. Particularly relevant in practice are social media, WhatsApp groups, emails, and internal communication channels, where statements can spread particularly quickly.

Defamation means that an alleged fact about a person is spread, which is capable of damaging their reputation. It is therefore about someone asserting something about another person that makes them appear worse in public, regardless of whether it is ultimately true or not.

Defamation in Austria explained. When factual allegations are punishable and how to defend yourself against reputational damage under § 111 of the Criminal Code.
Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Anyone who disseminates facts bears responsibility for how they impact and what consequences they trigger.“

objective elements of the offence

The objective elements of § 111 of the Criminal Code cover any defamatory factual allegation that someone makes to at least one third party and that can damage the reputation of the person concerned. It does not matter whether the statement is made amicably, casually, or during a dispute. Crucially, the content must be objectively capable of impairing the social standing or reputation of the person concerned. The offense protects every person’s right not to be disparaged in public through false or unclear factual representations.

A statement fulfills the objective elements of the offense as soon as it contains a factual core, is perceived by third parties, and can objectively cause reputation-specific disadvantages. Whether the statement is true or not is only assessed by the court within the framework of the proof of truth under § 112 of the Criminal Code.

Steps of legal assessment

Perpetrator:

Any person who makes or disseminates a defamatory factual allegation can be the perpetrator. It does not matter whether this occurs in a private setting, within a company, in a WhatsApp group, or publicly. The sole decisive factor is that the statement originates from this person and becomes perceptible to third parties.

Object of the Offense:

The object of the offense is any specific or at least clearly identifiable person about whom someone makes a factual allegation. It is sufficient for third parties to recognize whom the statement concerns. The offense protects a person’s good reputation.

Act:

The actus reus consists of a factual allegation with a defamatory character. This includes all statements with verifiable content, particularly accusations that someone has acted criminally, immorally, unreliably, or otherwise in a socially reprehensible manner.

A statement fulfills the elements of the offense if:

• it is made to at least one third party,
• it contains a defamatory factual core,
• it is objectively damaging to reputation.

Important: Spreading a rumor is also covered by the offense if the perpetrator clearly adopts the assertion as their own. Value judgments can also be covered if they contain an implied factual core.

Result of the Offense:

The success of the offense lies in the endangerment of reputation. Actual damage is not required. It is sufficient that the statement, by objective standards, is capable of making the person concerned appear worse in public opinion.

Causality:

The defamatory statement causes the endangerment of reputation. Without the statement, the specific risk would not exist in this form. Forwarding or amplification also contributes to causality if they create or increase the endangerment of reputation.

Objective Attribution:

The outcome is objectively attributable if the endangerment of reputation realizes precisely the risk that § 111 of the Criminal Code aims to prevent, namely the unjustified damage to social standing. No attribution occurs if third parties arbitrarily distort a neutral statement and the original speaker could not have foreseen this severe distortion of meaning.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„Reputational damage rarely begins with a major attack, but usually with an ill-considered assertion.“
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Distinction from other offences

The offense of defamation applies as soon as someone makes a defamatory factual allegation to third parties, thereby endangering the reputation of a specific person. The perpetrator impairs the social standing of the affected person by disseminating a factual representation capable of diminishing their social position. The wrong arises because the perpetrator asserts or spreads a reputation-damaging factual core that third parties can perceive, and not merely due to an expression of opinion. Crucially, the perpetrator violates the affected person’s claim to social recognition, even if the statement is not crudely formulated or occurs in an everyday conversation.

Concurrences:

Genuine Concurrence:

True concurrence exists when other independent offenses, such as insult, calumny, dangerous threat, coercion, or persistent harassment, are added to defamation. These offenses are not superseded because the impairment of reputation constitutes an independent element of wrongdoing. If the statements lead to further violations of legal interests, the offenses regularly coexist.

Spurious Concurrence:

Supersession due to specialty is only considered if another offense fully encompasses the entire wrongdoing. This is typically the case with calumny, when the knowingly false factual allegation exclusively aims at initiating legal proceedings. Conversely, § 111 of the Criminal Code itself has specialty when only the reputation-specific endangerment is paramount and no further violations of legal interests exist.

Multiple Offenses:

Plurality of offenses exists when several reputation-damaging statements are made or disseminated independently of each other or when different communication processes occur separately in time. Each independent statement to a new group of recipients constitutes a separate offense, provided there is no natural unity of action.

Continued Action:

A single offense is assumed when continuous defamatory factual allegations against the same person are closely related in time and context, such as a series of similar statements in an ongoing conflict. The offense ends as soon as no further statements are made or the perpetrator visibly ceases their involvement in the communication.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Words have legal effect as soon as they reach third parties and shape their perception of a person.“

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

Under § 111 of the Criminal Code, the public prosecutor’s office is only competent if a special public interest is assumed or if the defamation is related to other official offenses. If it acts, it must prove that the accused made or disseminated a defamatory factual allegation to third parties and that this statement was objectively capable of impairing the reputation of the affected person. It is not about personal feelings or value judgments, but about the objective circumstance that a reputation-damaging factual allegation was made and could be perceived by at least one third party.

The public prosecutor’s office must also demonstrate whether the statement, in the context of its dissemination, develops a reputation-damaging character, or whether there are indications that the accused consciously or negligently asserted a factual core that was capable of diminishing the reputation of the affected person.

Court:

The court examines all evidence in its entirety and assesses whether, by objective standards, a defamatory factual allegation was made and perceived by third parties. The central question is whether a verifiable fact was asserted and whether, based on its content, formulation, and context, it was capable of impairing the social standing of the affected person.

In doing so, the court particularly considers:

The court clearly distinguishes between mere expressions of opinion without a factual core, evaluative disputes in everyday life, and misunderstandings where the content of the statement was clearly unclear or not reputation-damaging to outsiders.

Accused Person:

The accused person bears no burden of proof. However, they can raise justified doubts, particularly regarding

It can also demonstrate that certain statements were taken out of context, that they were clearly formulated as opinion or criticism, or that they were based on genuinely assumed sources, provided that the proof of truth or good faith under § 112 of the Criminal Code is admissible.

Typical Assessment

In practice, the following evidence is particularly important for § 111 of the Criminal Code:

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„In criminal proceedings, it is not the loudest accusation that decides, but the provable factual basis.“
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Practical example

These examples show that defamation occurs when defamatory facts are stated or disseminated to third parties, even though they are neither verified nor substantiated and are objectively capable of impairing the reputation of the affected person.

subjective elements of the offence

The subjective elements of defamation require intent. The perpetrator must know that they are making or disseminating a defamatory factual allegation about a specific person and that this statement is objectively capable of impairing the social standing of the affected person. At the same time, they must at least tacitly accept that third parties perceive the statement and understand it as a factual representation.

The perpetrator must therefore understand that their conduct, in its overall context, constitutes a reputation-specific impairment and is typically capable of affecting the social position of the affected person. Crucially, the factual allegation must be made or disseminated consciously; mere negligence is not sufficient.

No subjective elements of the offense exist if the perpetrator genuinely believes that their statement is true or that it is not a defamatory factual core, but merely a value judgment or a neutral communication without a reputation-damaging character. Anyone who assumes they are acting lawfully or does not recognize that their statement can be understood as a factual allegation does not meet the requirements of § 111 of the Criminal Code.

Ultimately, intent exists when someone knows and consciously aims to make a reputation-damaging factual allegation to third parties, thereby impairing the social standing of the affected person in their social environment.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

Diversion is generally possible in cases of defamation. The offense protects a person’s social standing from defamatory factual allegations, and the gravity of guilt is primarily determined by the content, reach, and impact of the statement, as well as the perpetrator’s personal responsibility. In cases of minor endangerment of reputation, clear insight, and no prior convictions, a diversionary resolution is regularly considered in practice.

However, the clearer a systematic, deliberate, or repeated dissemination of defamatory facts is, or the greater the actual or threatened damage to reputation, the less likely a diversion will be.

If a diversion is considered, the court can order monetary payments, community service, supervisory instructions, or offender-victim mediation, for example, in the form of a correction, a retraction, or an apology. A diversion results in no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

Only with significantly minor culpability and immediate remorse can it be examined whether an exceptional diversionary procedure is permissible. In practice, diversion remains possible for defamation, but is rare in systematic or severe cases.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Whoever deliberately disseminates defamatory statements compels the law to draw clear boundaries.“
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Sentencing and consequences

The court determines the penalty based on the extent of the injurious act, the nature, scope, and intensity of the defamation, and how severely the alleged fact has affected the social standing of the person concerned. Decisive factors include whether the perpetrator has repeatedly, targeted, or systematically disseminated injurious facts over a longer period and whether the conduct has caused a noticeable social or professional burden.

Aggravating Factors Exist in Particular If

Mitigating Factors Include

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis.

Penalty Range

Depending on the form of dissemination, defamation is punishable by imprisonment for up to six months or a fine of up to 360 daily rates. If the injurious assertion is made in a way that reaches many people, the court can impose imprisonment for up to one year or a fine of up to 720 daily rates. These limits constitute the statutory maximum penalty framework.

An apology, a retraction, or other attempts at redress do not alter this penalty framework. Such circumstances are considered exclusively within the scope of sentencing.

The exclusion of punishment is central. The perpetrator is not to be punished if the assertion is proven true, or if, in a milder case, they had plausible reasons to believe the statement to be true. Thus, the law does not protect against justified criticism, but against false factual assertions that are capable of damaging a person’s reputation.

Significance of the Proof of Truth

Whether a proof of truth or a proof of good faith may be presented is governed by special rules. The accused must explicitly invoke it. Such proof is not admissible regarding facts from the private or family sphere or accusations that are only prosecuted upon request. In these cases, the exclusion of punishment cannot apply.

Private Prosecution Offense

Defamation is not prosecuted ex officio. The affected person must file a complaint with the court themselves and conduct the proceedings as a private prosecutor. Without this private prosecution, no criminal prosecution takes place.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

Note:

In cases of defamation, a monetary fine is particularly considered when the injurious assertion had only limited effects, the reputation of the person concerned was only slightly impaired, and the conduct is at the lower end of culpability. In such cases, a monetary fine is often imposed, while serious or publicly effective accusations may lead to stricter sanctions.

Imprisonment and (partially) suspended sentence

Section 37 of the Criminal Code: If the statutory penalty extends up to five years, the court can impose a monetary fine instead of a short prison sentence of up to one year. This option also exists for offenses whose basic elements provide for a monetary fine or imprisonment for up to one year. In practice, Section 37 of the Criminal Code is applied cautiously if the injurious act was particularly burdensome, repeated, or associated with noticeable public defamation. In less serious cases, however, particularly with limited impact or immediate cessation of misconduct, Section 37 of the Criminal Code can be applied.

Section 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This option also exists for offenses with a basic penalty framework of up to one year. A conditional suspension is granted more cautiously if aggravating circumstances are present or the defamatory assertion has led to significant professional or personal burdens. It is particularly realistic if the conduct is less severe, spontaneous, or has caused no lasting consequences for the person concerned.

Section 43a of the Criminal Code: The partially conditional suspension allows a combination of an unconditional and a conditionally suspended part of the sentence. It is possible for sentences exceeding six months and up to two years. Since in more severe cases of defamation, sentences in the higher range of the penalty framework can be imposed, Section 43a of the Criminal Code is regularly considered. However, in situations involving widespread public defamation or targeted action, it is applied much more cautiously.

§§ 50 to 52 StGB: The court can additionally issue instructions and order probation assistance. Particularly relevant are contact bans, supervisory measures, or other orders intended to promote the protection of the person concerned and stable legal rehabilitation. Special attention is paid to the cessation of further defamatory assertions and ensuring that the perpetrator will no longer disseminate similar statements in the future.

Jurisdiction of the courts

Subject-matter Jurisdiction

For defamation, due to the penalty framework of up to six months imprisonment or up to 360 daily rates fine in the basic offense, and up to one year imprisonment or up to 720 daily rates fine in the qualified case, the District Court is generally competent. Offenses with such a low penalty fall under the first-instance jurisdiction of the District Courts according to statutory rules.

Since defamation is only punishable by comparatively minor penalties, the proceedings always remain with the District Court. For the Regional Court or a lay judge court, a significantly higher penalty would be legally necessary. Since this is not provided for in cases of defamation, these courts are not involved here.

A jury court is excluded because defamation does not provide for life imprisonment and therefore does not meet the legal requirements.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„Correct jurisdiction is not a mere formality: Anyone who starts before the wrong court loses time, nerves, and potentially also evidentiary and enforcement advantages.“

Local Jurisdiction

The court of the place of offense has jurisdiction. Particularly relevant is

If the place of the offense cannot be clearly determined, the jurisdiction is based on

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

An appeal to the Regional Court is possible against judgments of the District Court. The Regional Court decides as an appellate court on guilt, penalty, and costs.

Decisions of the Regional Court can subsequently be challenged by appeal for nullity or a further appeal before the Supreme Court, provided that the legal requirements are met.

Civil claims in criminal proceedings

In cases of defamation, the affected person, as a private prosecutor, can assert civil claims directly in the criminal proceedings. Since the act constitutes a violation of social standing and thus regularly an infringement of general personal rights, particularly pain and suffering compensation, compensation for any economic disadvantages, costs of psychological support, as well as other pecuniary or non-pecuniary damages caused by the defamation, are considered. Depending on the individual case, consultation or legal assistance costs can also be claimed, insofar as they were directly caused by the injurious assertion.

The joinder of a private party as a claimant suspends the statute of limitations for the asserted claims as long as the criminal proceedings are pending. Only after final conclusion does the limitation period begin to run again, unless the claim has been fully awarded.

Voluntary redress, such as a sincere apology, a retraction, a correction, or financial compensation, can have a mitigating effect on the sentence, provided it is timely, credible, and complete.

However, if the perpetrator has systematically, repeatedly, or over a longer period disseminated injurious assertions that have caused social, professional, or personal disadvantages, a later redress generally largely loses its mitigating effect. In such constellations, subsequent compensation cannot decisively relativize the committed wrong.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Defamation leaves traces that are often harder to erase than material damages.“
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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which point a person is considered an accused and can claim all rights of the accused. However, in private prosecution offenses such as defamation, criminal proceedings do not commence ex officio. The affected person must themselves file a private complaint with the court; only then does a regular criminal proceeding arise. Without such a complaint, only preliminary examinations are permissible, such as an initial legal assessment or the recording of an incident, but no investigations by the police or public prosecutor’s office.

Police and Public Prosecutor’s Office

In cases of defamation, the public prosecutor’s office does not conduct the proceedings, but rather the court within the framework of a private prosecution. The police and public prosecutor’s office are generally not involved, as the offense is not prosecuted ex officio. The decisive steps therefore lie with the court and the parties themselves. The proceedings conclude with dismissal, diversionary settlement, or judgment. Without an effective private prosecution, no formal criminal proceedings may be conducted.

Interrogation of the Accused

Before each interrogation, a full briefing on rights takes place, particularly on the right to remain silent and the right to legal counsel. A formal interrogation of the accused in private prosecution proceedings requires that a valid and formally effective private prosecution exists. If a defense lawyer is requested, the interrogation must be postponed.

Access to files

Access to files can be obtained from the court and includes all evidentiary documents, provided that the purpose of the proceedings is not jeopardized thereby. The joinder of a private party as a claimant is governed by the general rules of the Code of Criminal Procedure and is not restricted by the private prosecution. Even in private prosecution proceedings, rights of access to files are available to both the accused and the private prosecutor.

Main Hearing

The main hearing serves the purpose of oral evidence taking, the legal assessment, and the decision on civil claims of the private parties. Without a properly filed private prosecution, no main hearing takes place, as otherwise no criminal proceedings could be conducted.

Rights of the accused

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„The right steps in the first 48 hours often determine whether a procedure escalates or remains controllable.“
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Practical guidance and behavioural advice

  1. Maintain silence.
    A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
    This right applies from the very first interrogation by the police or the public prosecutor.
  2. Contact defense counsel immediately.
    No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
  3. Secure evidence immediately.
    You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
  4. Do not contact the opposing party.
    Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
  5. Secure video and data recordings in time.
    Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
  6. Document searches and seizures.
    In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
  7. In case of arrest: make no statements about the matter.
    Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
  8. Prepare reparation strategically.
    Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.
Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„Those who act thoughtfully, secure evidence, and seek legal assistance early retain control over the proceedings.“

Your Benefits with Legal Assistance

Cases of defamation concern sensitive infringements of a person’s personal rights and social reputation. It is crucial whether an injurious factual assertion was actually made to third parties and whether it was capable of damaging the reputation of the person concerned. Even small differences in the wording, context, dissemination, or interpretation of a statement can significantly alter the legal assessment.

Early legal representation ensures that statements, message histories, communication situations, and potential witness testimonies are correctly assessed, fully secured, and examined in the appropriate legal context. Only a precise analysis shows whether the accusation of defamation is justified or whether there is a misunderstanding, a permissible expression of opinion, or a lack of factual basis.

Our law firm

As specialists in criminal law, we ensure that the accusation of defamation is legally precisely examined and that the proceedings are conducted on a complete, realistic, and factually balanced basis.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Legal support means clearly separating the actual events from interpretations and developing a robust defense strategy based on them.“
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FAQ – Frequently Asked Questions

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