During a municipal authority committee meeting which was open to the public and concerned the widening of a public road, Maria, a member of the public, secretly recorded the discussion. Maria was the tenant of a house on the road in question and was, like most of her neighbours, opposed to the widening project. At the end of the sitting, committee members noticed that Maria had recorded the discussion and they wanted her to hand over the tape. Maria refused. Do the committee members have any claim against Maria?
The participants of the meeting can claim for abatement and forbearance.
The right to one's own spoken words is derived from § 16 ABGB and can be invoked in relation to the values underlying different provisions of the Austrian legal order. § 120 StGB (‘misuse of sound recorders or listening devices’) can be considered, however it is too restricted on its own.
The secret recording of a private conversation is unlawful. If a public conversation is involved, in Posch's opinion there could only be an infringement of a personality right if there is an untrue, an abridged or a manipulated quotation.
The crucial point in this case is whether the secret recording of the discussion at the committee meeting should be allowed considering that there was public access to the meeting. According to the OGH, the right to one's own spoken words includes the speaker's autonomy to decide if his/her voice should be taped by a recording machine.