combined with self-regulatory mechanisms?
4.1. Safeguards
41 13 Os130/10g (13 Os136/10i),
https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20101216_OGH0002_0130O S00130_10G0000_000 accessed on 20 March 2016
42 The terms „journalistic/media-related“ are meant in the light of § 31 (1) MedienG 1981 and therefore include the
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§ 31 MedienG 1981 merely provides a right to remain silent, if the judge, the prosecutor, or the counsel for the other party requests information in any form.43 In contrast to other evidentiary
privileges, the court is not obliged to advise the privilege holder of his right to remain silent about the sources.44 This means that the trial may not become a subject of a nullity appeal merely
because the witness had not been informed about this right.45 Equally, a trial does not become
invalid because the witness has disclosed the sources; he is, naturally, allowed to do so if he is asked about it.46
Some legal commentators view this legal situation as justifiable, pointing out that the occupational groups concerned should, in any case, be aware of their professional privileges and thus need not be additionally advised of their right to remain silent. Nonetheless, this remains controversial, especially if one considers that such obligation exists under § 152 (2) StPO 1975 in respect of attorneys and notaries, that is, professionals who would normally be expected to be aware of their rights more than members of any other profession.47
All things considered, there are no safeguards to protect the holders of the journalistic privilege from the consequences of their unfamiliarity with the law. Absent any self-regulatory mechanism, it is for media undertakings to ensure that their employees are cognisant of their right to remain silent.
4.2. Implementation of the Laws
Austrian law guarantees a wide range of fundamental rights. Not all of them, however, are anchored in constitutional statutes (as may be the case in other countries). Some provisions gained importance over time and were therefore elevated to rank of constitutional law, despite being regulated in ‘ordinary’ statutes (einfachgesetzliche Regelungen). Additionally, some fundamental rights have their origin in public international law and regulations issued by international institutions and supranational organisations.
A particularly prominent source of fundamental rights is the ECHR, which Austria joined in 1958. The ECHR has been transposed into national law in a general way, which means that its
43 In contrast to the situation in 13 Os130/10g (13 Os136/10i), where the journalist was a defendant, a journalist-
witness does not have any right to object to such a request; he may only refuse to answer questions.
44 Hubert Hinterhofer, Zeugenschutz und Zeugnisverweigerungsrechte im österreichischen Strafprozess, (Facultas 2004) 421
[German]
45 Brandstetter, Schmid, Kommentar zum Mediengesetz, (Manz Verlag) §31 Rz 14 [German]
46 A journalist has no right to be heard, but may just respond to questions he/she is asked in the witness stand. As a
result, this also means that an informant is not protected by any law and basically has no rights against a disclosing journalist.
47 Hubert Hinterhofer, Zeugenschutz und Zeugnisverweigerungsrechte im österreichischen Strafprozess, (Facultas 2004) 421
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provisions are directly applicable in Austria. As a result, the freedom of expression guaranteed by Article 10 ECHR enjoys the rank of a constitutional right.48
As regards the protection of journalistic sources, which is mainly regulated by the MedienG 1981 (an ordinary statute), it was controversial whether it belonged with the freedom of expression and thus had to be regarded as an aspect of that constitutional right.49 This controversy was
resolved by the OGH in 2010,50 when the Court took a strong position on the legal status of § 31
MedienG 1981 and ruled that the protection of journalistic sources provided for thereunder is an aspect of the freedom of expression and is therefore to be recognised as a constitutional right.51
Furthermore, the 2010 decision shed some more light on the question of the balance of
interests (as between the interest in protecting the source, on the one hand, and the interest in
obtaining the information, on the other). The Court held that no balance of interest was required in the context of the right to protect journalistic sources; in other words, no matter how essential the information could be (eg for the success of investigations of a serious crime), a breach of the right guaranteed by § 31 MedienG 1981 is not justifiable.
This must be seen as a special case, since most of the fundamental rights in Austria are subject to restrictions which are justifiable by reference to the exigencies of public interest or a specific purpose which they are to pursue. Only the most significant rights, such as the ones resulting from the prohibition of torture or slavery, are regarded as ‘absolute’ and are therefore free from restrictions of any kind. It is thus clear that Austrian legislation in this area goes far beyond the law laid down in the decisions of the European Court of Human Rights (ECtHR) concerning the balance of interests under Article 10, ECHR.52
5. In the respective national legislation, are the limits of non-disclosure
of the information in line with the principles of the Recommendation
No R (2000) 7? What are the procedures applied? Is the disclosure
limited to exceptional circumstances, taking into consideration vital
public or individual interests at stake? Do the authorities first search
48 Walter Berka, Verfassungsrecht, (4th edn, Springer Verlag 2012) 482-484 [German]. See also, Fritz Zeder, Hype um
das Redaktionsgeheimnis (Österreichische Juristen Zeitung, 2011/2) 5-9 [German]
49 Peter Zöchbauer, Was Journalisten (nicht) dürfen (Der österreichische Journalist, 02+03 edn, 2011) 100-101 [German]
accessed on 20 March 2016
http://www.journalist.at/archiv/2011-2/ausgabe-02032011/was-journalisten-nicht-durfen/
50 13 Os130/10g (13 Os136/10i), accessed on 20 March 2016
https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20101216_OGH0002_0130O S00130_10G0000_000
51 Fritz Zeder, Hype um das Redaktionsgeheimnis (Österreichische Juristen Zeitung, 2011/2) 5-9 [German] 52 Fritz Zeder, Hype um das Redaktionsgeheimnis (Österreichische Juristen Zeitung, 2011/2) 5-9 [German]
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