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from Part II - Case studies
Published online by Cambridge University Press: 06 July 2010
Case
In an advertisement for ‘light’ cigarettes, Dr Smith was quoted as saying: ‘Light cigarettes reduce the risk of cancer by up to 50%.’ The doctor's opinion was authentic; he had uttered these words at a scientific conference. But Dr Smith had always been a fierce opponent of smoking in general. Does the doctor have any claim against the tobacco company?
Discussions
Austria
Operative rules
Dr Smith can claim damages for economic and, in the case of gross negligence or intent, non-economic loss.
Descriptive formants
According to prevailing opinion, mentioning someone's name in a commercial is not an arrogation of the name under § 43 ABGB (protection of the name) because the producer of the commercial actually intended the product to be associated with this particular person and so the name is used as a mark of that person in a correct manner. However, another personality right, derived from § 16 together with § 43 and § 1330 ABGB, called the ‘right to not be mentioned by name’ (Recht auf Namensanonymität), is applicable in such a constellation.
By stating a person's name in a commercial, the audience could be under the impression that the name has been made available to the concerned company for such purposes. The right to decide if the name of a person should be used in a commercial has to be strictly reserved to that particular person.
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