In a recent decision, the Commercial Court of Vienna (Handelsgericht Wien) ordered the publication of a judgment in the form of a YouTube video. As far as can be told, this was the first time, confirming that new information channels and social networks can provide a venue for the publication of judgments.
The Social Network is the name of the newest film by David Fincher. It is no accident that the story of Facebook’s beginnings has been made into a film; social networks and user-generated content pages (UGC pages) have been a hot topic for a long time. However, not only film-makers but also businesses have recognised the potential offered by these popular, modern communication platforms. Thus, no marketing strategy should be without a company Facebook page or a branded YouTube channel, since these pave the way to reach a gigantic ‘community’ and a whole generation of internet users.
Naturally, for a company, this kind of internet presence fulfils similar (advertising) functions to a ‘normal’ company homepage. New customers are canvassed on the world wide web and even more consumers can be reached. Hence, it is no surprise that, as new communication channels have been created on the internet, competition law infringements, breaches of rights to use signs and personality right violations have also increased.
Although social network profiles and UGC pages give a somewhat less ‘official’ impression than company homepages (they are subject to layout restrictions that are dependent on the respective platform provider), from a legal perspective they must be deemed equivalent. The range of possible legal infringements in the context of these new communication platforms is equally wide.
Competition law violations and breaches of rights to use signs often entitle the victim to publish or have published a favourable judgment. According to settled case law, the purpose of such publication of a judgment is to inform the circle of people addressed by the unlawful action of the true facts, in accordance with the notion of restitution under the law of damages. In line with this, the publication of the judgment must satisfy the so-called ‘talionic principle’: if the legal infringement is committed in a particular medium, in principle, the judgment must be published in the same medium and in the same manner, as well as using the same presentation as the infringement. With respect to infringements on the internet, the Austrian Supreme Court ruled accordingly that the judgment should be published only on the internet and not, for instance, also in print media, such as daily newspapers.
In practice, however, the person applying the law encounters a problem when it comes to publishing a judgment on Facebook or YouTube. The content on these platforms can only be determined to a limited extent by the internet user. In most cases the user is provided with a pre-defined layout and an unchangeable template. In general, the user does not have any further power to design the presentation of the contents.
The Commercial Court of Vienna confirmed in a recent decision that it is also possible to publish a judgment on a YouTube channel and on the Facebook page of the party that committed an infringement, thus satisfying the talionic principle as far as possible.
As a branded company YouTube is comparable with a television channel, an analogy involving infringements committed on television makes sense when it comes to the publication of the judgment, while at the same time the technical possibilities and the layout restrictions of the YouTube platform must be taken into account. The Commercial Court of Vienna ordered the defendant to upload a video onto its company YouTube channel, showing the contents of the judgment both as continuous text and being read out clearly. Additionally the defendant was required to add video tags to the video containing the term ‘publication of judgment’, the infringed marks and the parties to the dispute.
In the case of infringements on Facebook, it would seem both feasible and to make sense to publish the judgment in the infringer’s photo album (with the award being shown as a photo and also being contained in the description of the photo album). The talionic principle could be satisfied by having the photo album appear in the newsfeed of all ‘friends’ or ‘fans’. In general this would reach exactly the people who might have known of the original legal infringement. Naturally, the infringer’s friends or fans may have changed in the time between the infringement and the publication of the judgment, but this level of uncertainty also exists when judgments are published in more classical media.
With respect to the recent judgment by the Commercial Court of Vienna, it may be concluded that parties whose rights have been infringed must sometimes develop creative approaches and have to work with the tools available if they wish to have a judgment published on social networks and UGC pages. The Commercial Court of Vienna has confirmed, however, that these new communication platforms do provide a venue for publishing judgments.
By Alexander Schnider, attorney-at-law and Dominik Hofmarcher, associate, Wolf Theiss.