WILMAP: Austria

LEGISLATION

 
[The safe harbors for intermediaries of the E-Commerce Directive are incorporated into Austrian national law by the E-Commerce-Act (E-Commerce-Gesetz - ECG). Section V of this act deals with the exclusion of liability for mere access providers (Section 13), search engine services (Section 14), caching providers (Section 15), hosting providers (Section 16) and link providers (Section 17).] [See also IRIS 2002-3:12/22.]
 
Copyright Act [Urheberrechtsgesetz] (UrhG), 1936
 
[According to Section 81 (1a) of the Copyright Act (Urheberrechtsgesetz – UrhG), the intermediary can be sued for injunctive relief. However, if the safe harbors of the §§ 13 - 17 ECG apply, only after the right holder has informed him of the infringement in a cease and desist letter.]
 
General Civil Code [Allgemeines bürgerliches Gesetzbuch] (ABGB), 1811
 
[ABGB does not have a central provision concerning liability for intermediaries. According to Section 1295 a person can be held liable for damages caused unlawfully through a fault of his. According to Section 1301 everyone who contributes to the damage either directly or indirectly can be held liable. This includes everyone with a certain obligation to prevent the damage from arising, if they have not done so. This liability presumes that the intermediary knew about the infringement or violated a special obligation to test if the infringement occurred. Therefore an intermediary can be held liable for the infringement of personality rights by a blog post or comments under a newspaper article (Section 1330 ABGB) if the plaintiff has informed him of the infringing content and he has refused to block it.]
 
Criminal Code [Strafgesetzbuch] (StGB), 1975
 
[Under certain circumstances the intermediary can be criminally responsible as a coperpertrator. The criminal responsibility of coperpertrators is specified in the Austrian Criminal Code (StGB). The code affirms that persons who knowingly and willingly contribute to a criminal activity (Section 12) can be held criminally responsible. This requires an active contribution which exceeds the safe harbors of the Sections 13 – 17 ECG. See below Regional Criminal Court in Graz] 

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.] 

DECISIONS

Superior Courts

Oberster Gerichtshof (Supreme Court), 4 Ob 140/14p, October 21, 2014
[copyright, hosting provider, injunctive relief, cease and desist letter]
 
[(1) The defendant maintains an Internet media website where users can upload content if they have an account and are logged in. The general terms and conditions of the website only allow  content which does not infringe upon the rights of its authors. The claimant holds the rights to certain photographs which users uploaded to the defendant's website. The right holder sued the defendant for publishing the photographs without consent.
 
(2) The Court ruled that a hosting provider can be sued for injunctive relief only after the claimant has informed him of the infringement. However, this prerequisite is not of formal, but of material character. Therefore, the claimant can bring action against the hosting provider but he will not succeed. The cease and desist letter has to contain specific information about the infringement and provide enough evidence of the existence of the copyright. In this case the right holder only sent an invoice, which the Court deemed insufficient.
 
(3) However, if the claimant provides enough evidence of his copyright and specific information about the infringement during the proceedings, the hosting provider cannot continue to plead lack of knowledge about the infringement.]
 
Oberster Gerichtshof, 6 Ob 133/13x, January 23, 2014 (later confirmed in 6 Ob 188/14m, December 15, 2014 and 6 Ob 145/14p, February 19, 2015)
[personality rights, defamation, online newspaper, publisher, disclosure of user data, journalist confidentiality]
 
[(1) An Austrian politician sued the publisher of an online newspaper for disclosure of the names and email addresses of users who posted allegedly infringing comments in the discussion forum under a certain article about the politician.
 
(2) The Court confirmed that the defendant was obliged to disclose the information about the users according to Section 18 (4) ECG. The plaintiff did not have to prove that the comments were infringing. He only had to show probable cause why the comments were infringing. Further the Court ruled that the protection of sources due to journalist confidentiality in Section 31 Mediengesetz (Media act) was not applicable.]
 
Oberster Gerichtshof, UPC Telekabel, 4 Ob 6/12d, May 11, 2012
[copyright, access provider, hosting provider, illegal movie streaming, blocking order, measures adopted]
 
[(1) UPC Telekabel appealed on a point of law to the Supreme Court a decision form a lower court ordering Telekable to block access to an illegal movie streaming website (see below).
 
(2) In support of its appeal, UPC Telekabel submited inter alia that its services could not be considered to be used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29 because it did not have any business relationship with the operators of the website at issue and it was not established that its own customers acted unlawfully. In any event, UPC Telekabel claims that the various blocking measures which may be introduced can all be technically circumvented and that some of them are excessively costly.
 
(3) The Court decided to stay the proceedings and to refer questions to the European Court of Justice for a preliminary ruling.]
 
Oberster Gerichtshof, 6 Ob 178/04a, December 21, 2006
[personality rights, hosting provider, injunctive relief]
 
[The claimant sued the hosting provider for damage allegedly caused by the users of an online guest book which the defendant operates. The Court stated that a hosting provider is excluded from direct civil or criminal liability. However, he is not excluded from civil injunctive relief which exists regardless of culpability.]
 
Oberster Gerichtshof, Google AdWords, 4 Ob 194/05s, December 19, 2005
[search engine provider liability, keyword advertising]
 
[(1) A pharmaceutical company is the holder of a registered trademark 'Glucochondrin'. A third party has used the word 'glucochondrin' for the purposes of keyword advertising in Google Adwords. The trademark holder sued Google for the trademark infringement.
 
(2) The Court ruled that the operator of a search engine cannot be held liable for trade mark infringement by a third party using its keyword advertising tool if the infringement is not apparent to a ‘legal layman’ and if the operator hadn’t been informed of the infringement.]
 
Oberster Gerichtshof, 6 Ob 190/03i, February 19, 2004
[personality rights, hosting provider, onine newspaper, injunctive relief]
 
[(1) An Austrian Bishop claimed that an online newspaper article infringed his personality rights. He sued the newspaper publisher for injunctive relief. The defendant claimed that he is not a hosting provider and therefore cannot be sued for injunctive relief.
 
(2) Due to the defendant's misconception about the interpretation of Section 16 ECG, the Court had to point out that Section 16 ECG does not establish the liability of hosting providers, but rather determines the conditions under which they are not liable for the actions of third parties. The Court also pointed out that hosting providers can be sued for injunctive relief (Section 19 ECG) regardless of Sections 13-17 ECG.
 
Oberster Gerichtshof, fpo.at II, 4 Ob 176/01p, September 12, 2001
[domain name infringement, domain name authority, injunction]
 
[In the second decision regarding the domain www.fpo.at, the Court decided that the domain name authority is obliged to block the domain when the infringement of someone’s right is apparent to a 'legal layman'.]
 
Oberster Gerichtshof, fpo.at I, 4 Ob 166/00s, September 13, 2000 
[domain name infringement, domain name authority, liability, injunction]
 
[(1) The Austrian political party FPÖ operates the website www.fpoe.at. It alleged that the operator of the domain www.fpo.at infringed its name rights because his site contained content similar to the official website of the party and was designed to mislead the visitors of the site into thinking it is the official website of the party.
 
(2) The Court denied the domain name authority’s obligation to monitor all assigned domain names for an infringement. It also ruled that the deletion of a domain name cannot be the subject of temporary injunction.]
 

Lower Courts

Austrian Regional Criminal Court in Graz [Landesgericht für Strafsachen in Graz], July 2014
[child pornography, TOR exit node, coperpretator]
 
[finding the operator of a TOR exit node guilty of willingly contributing to distribution of child pornography under the Austrian Criminal Code. For more information see Husovec.]
 
Oberlandesgericht Wien [Higher Regional Court, Vienna], UPC Telekabel, October 27, 2011
[copyright, access provider, hosting provider, illegal movie streaming, blocking order, measures adopted]
 
[(1) The Court, as an appeal court, partially reversed the order of the court of first instance (see below) in so far as it had wrongly specified the means that UPC Telekabel had to introduce in order to block the website at issue and thus execute the injunction. 
 
(2) In order to reach that conclusion, the Oberlandesgericht Wien first of all held that Article 81(1a) of the UrhG must be interpreted in the light of Article 8(3) of Directive 2001/29. 
 
(3) It then held that, by giving its customers access to content illegally placed online, UPC Telekabel had to be regarded as an intermediary whose services were used to infringe a right related to copyright, with the result that Constantin Film and Wega were entitled to request that an injunction be issued against UPC Telekabel. 
 
(4) However, as regards the protection of copyright, the Oberlandesgericht Wien held that UPC Telekabel could only be required, in the form of an obligation to achieve a particular result, to forbid its customers access to the website at issue, but that it had to remain free to decide the means to be used.]
 
Handelsgericht Wien [Commercial Court, Vienna], UPC Telekabel, May 13, 2011 
[copyright, access provider, hosting provider, illegal movie streaming, blocking order, measures adopted]
 
[(1) Having established that a website was offering, without their agreement, either a download or ‘streaming’ of some of the films which they had produced, Constantin Film and Wega, two film production companies, referred the matter to the court responsible for hearing applications for interim measures to obtain, on the basis of Article 81(1a) of the UrhG, an order enjoining UPC Telekabel, an internet service provider, to block the access of its customers to the website at issue, inasmuch as that site makes available to the public, without their consent, cinematographic works over which they hold a right related to copyright.
 
(2) The Court prohibited UPC Telekabel from providing its customers with access to the website at issue; that prohibition was to be carried out in particular by blocking that site’s domain name and current IP (‘Internet Protocol’) address and any other IP address of that site of which UPC Telekabel might be aware. 
 
(3) In June 2011, the website at issue ceased its activity following an action of the German police forces against its operators.]
 
Oberlandesgericht Wien, eBay, 1 R 182/10g, September 27, 2010 
[fraud, hosting provider, online auction provider, direct liability]
 
[(1) The plaintiff bought gold on eBay from a seller who had the status of a Power Seller. The Power Seller status is awarded by eBay to sellers who achieve a certain sales volume and who have high ratings. The status therefore improves the credibility of the seller. In this case the seller sold gold which he never delivered. He has been convicted of fraud in 113 similar cases.
 
(2) The Court ruled that eBay was obliged to block the seller who has infringed on eBay's own terms of service. Failing to do so resulted in direct liability for the damage which the buyers, who trusted the credibility of a Power Seller, suffered.]

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