Protection against violence and hate on the internet is a focus area in the Austrian Federal Government's program for 2020-2024. Currently, there are two draft laws up for vote which are aimed at increasing the communication platform users' protection and strengthening an individual's legal position when affected by hate on the internet. The laws are likely to come into force on 1 January 2021.
This article provides an overview of the new challenges for communication platforms as well as for telephone/internet providers and focuses on new regulations imposed by the draft laws in the areas of civil law, criminal procedural law and media law.
1. The Communication Platforms Act (Kommunikationsplattformen-Gesetz – KoPl-G) provides for a wide range of responsibilities and obligations for communication platforms, including social media platforms.
2. The Federal Law on Measures to Combat Hate on the Internet (Hass-im-Netz-Bekämpfungs-Gesetz – HiNBG) contains various amendments in the areas of civil, media and criminal (procedural) law.
1. COMMUNICATION PLATFORMS ACT
The planned Communication Platforms Act will apply to all "domestic and foreign providers of communication platforms" with more than 100,000 users and an annual turnover in Austria of more than 500,000 euros. Excluded are encyclopaedias such as Wikipedia, trading platforms such as "willhaben" and the online forums of Austrian media companies. The draft act imposes various obligations on these platforms, including, in particular, the establishment of an effective and transparent reporting and review procedure for dealing with allegedly illegal content (including terrorist offences, cyberbullying and stalking).
In addition to detailed information obligations to the reporting user, the platforms must also ensure that obviously illegal content is removed within 24 hours of receipt of a report. In the case of illegal activity that requires a more detailed examination, the content must be removed within 7 days of receipt of the report at the latest. To ensure accessibility and compliance with the regulations, the platform must appoint a responsible representative.
Failure to comply with the act's obligations may result in severe penalties. Users can also file a complaint with the supervisory authority "KommAustria". In the event of repeated violations, the authority can impose fines of up to ten million euros. This raises the question of how the fines can be collected if the platform is not located in Austria. In such cases, payments from Austrian companies to the platform can be intercepted - for example, remittances from advertising customers. Fines of up to 10,000 euros are also possible for the contact persons of the platforms.
2. FEDERAL LAW ON MEASURES TO COMBAT HATE ON THE INTERNET
CRIMINAL PROCEDURAL LAW
The Austrian Criminal Code (Strafgesetzbuch, StGB) contains a number of offences that are not prosecuted by a public prosecutor, but by the victim himself/herself, a so-called „private prosecutor“. These include offences such as defamation (Sec. 111 StGB), accusing someone of a crime for which that person has already served a sentence (Sec. 113 StGB), and insult (Sec. 115 StGB). The reason why these offences can only be prosecuted by the person affected by them (the victim) is that they do not concern public interests, but rather the individual's privacy. In such proceedings, the victim or his/her legal representative takes on the role of the prosecutor and has certain prosecutorial powers with regards to securing evidence (Sec. 71 Austrian Criminal Code of Procedure, Strafprozessordnung, StPO).
Private prosecution proceedings start once the person affected presses charges against the offender; there are no preliminary proceedings. To initiate proceedings, however, the private prosecutor must know who the offender is. When it comes to anonymous defamatory or insulting postings on the internet, including social media, it is often not possible to identify the perpetrator without having access to that person's subscriber information or other personal data.
The new legal provisions are aimed at helping the individuals affected by insulting, defamatory or accusatory statements in telephone and internet communication to identify the perpetrator, i.e. the person publishing an insulting posting on a social media platform. The person affected will be able to request the court to issue an order to telephone and internet providers to provide the relevant data. The court will assess the legal requirements and, if they are met, authorise law enforcement to request the data from the service providers.
If the perpetrator can be identified, the court must inform him/her of the investigation and the right to appeal against the court's order. The court can only disclose the investigation's results to the victim once the order has become legally binding, and the victim must press charges against the identified offender within six weeks of disclosure, or otherwise he/she will lose the right to prosecute.
A new provision in the Media Act, Sec. 36b, will permit courts in proceedings related to the act to directly order hosting service providers – not just media owners – to remove content from a platform and to publish a verdict on such website, if the media owner is based in another country or cannot be prosecuted for any other reason.
In a nutshell, the new regulations provide a variety of rights for users and simultaneously impose a challenging amount of responsibilities on service providers and communication platforms.