OGH: Shareholders’ right to information as justification for an insult of honour?

The Austrian Supreme Court (Oberste Gerichtshof; OGH) recently addressed the question of whether an insult of honour pursuant to § 1330 Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB) can be justified by the right of shareholders of a stock corporation (Aktiengesellschaft; AG) to information pursuant to § 118 (1) Austrian Stock Corporation Act (Aktiengesetz; AktG): Thus, every shareholder must, upon request, be provided with information on the AG’s affairs at the General Meeting.

In the case at hand, the comments made by the defendant shareholder at the General Meeting relating to the plaintiff’s influence on the Executive Board with regard to the planned merger with a foreign company, were perceived by the plaintiff as an insult to his honour.

At the outset, the OGH held that an attack on the absolute right to honour and reputation indicates an unlawful act, which may be justified on the basis of weighing of interests. The question in whose favour the interests are weighed (in accordance with § 1330 ABGB) requires an individual assessment of the facts.

The right to information pursuant to § 118 (1) AktG is a shareholder right that may also be exercised at the General Meeting of an AG. The defendant was undoubtedly entitled to exercise his right at the relevant General Meeting on the subject of the planned merger of the AG with a foreign company. In addition, the fact that a member of the Management Board of the AG admitted in the General Meeting that he met up with the Management Board in secret was of importance in the court’s consideration: This created a suspicion with regard to planned potentially damaging actions of the Management Board.

Thus, the OGH upheld the ruling of the Court of Appeal to the effect that in this case the right to information of the defendant and the other shareholders was predominant to the plaintiff’s right to honor and reputation.

OGH 6 Ob 34/19x (24.07.2019)