New Measures Against Online Hate Speech
Draft of a Communication Platform Act
In order to counter the increasing problem of online hate speech, the Austrian government has presented a draft of a Communication Platform Act (Kommunikationsplattformen-Gesetz, KoPl-G). The new regulations are to apply to communication platform providers based inside and outside of Austria, with the general exception of platforms for the brokerage or sale of goods or services, online encyclopaedias, and media companies. There are also exceptions for platforms that in the previous year had no more than 100,000 users in Austria and a maximum turnover of € 500,000 in Austria.
The new obligations apply only to certain offences, in particular coercion, stalking, insults and unauthorized photographing. The new act does not cover civil-law offences, for example copyright infringements or business defamation.
The main objective of the draft legislation is to institute orderly and comprehensible processes of reporting and assessment. Service providers have to provide effective and transparent procedures for reporting and blocking content that violates the stipulated criminal law provisions. Reporting channels have to be easy for users to find and use, and clearly explained. If the illegality reported is immediately obvious to a person with no legal training, the content must be deleted within 24 hours, or, if a detailed examination is required, within seven days. There must also be procedures for submitting complaints to the supervisory authority, for having the blocking of content examined at the initiative of persons concerned (including the author), for the prevention of blocking and for the storing of content and authors’ data for purposes of evidence for a maximum of ten weeks. Moreover, service providers are required to make reports to the supervisory authority.
The reconcilability of the regulations with the exemption of providers from liability for legal violations by their users under the E-Commerce Directive is discussed in detail in the explanatory remarks. The increasing significance of platform liability, in particular of social media such as Facebook, Twitter, YouTube or Tripadvisor, has made this a highly relevant issue. Conformity of the draft legislation with the E-Commerce Directive is seen especially in the fact that providers are not subject to any general monitoring obligations but are only required to respond correctly to specific notifications and violations. Civil law injunctions or compensation claims are not affected. Pursuant to case law, it is possible to obligate communication platforms to delete not only specific postings, but also postings “having an equivalent meaning”, to the extent that this can be done with an automated procedure without examining each individual case (ECJ C-18/18, Glawischnig/Facebook; OGH 4 Ob36/20b). Moreover, the country-of-origin principle of the E-Commerce Directive, pursuant to which providers of information society services are subject to the law of the Member State in which they are established, contains exceptions for “the fight against any incitement to hatred”.
The stipulated fines of up to € 10 million are to be taken very seriously, but they apply only to organizational negligence in the event that the required procedures are not instituted. Violation of the obligation to delete content will not be sanctioned in individual cases but rather in the event of repeated violations. The main criteria used in assessing the amount of a fine are the financial strength of the service provider, the number of its registered users and the extent of the provider’s willingness to comply with the regulations. In order to facilitate the enforcement of decisions against platform operators based outside of Austria, these operators have to appoint a regular representative within the meaning of section 9 of the Administrative Penal Act (Verwaltungsstrafgesetz 1991, VStG). Decisions may be communicated through publishing in the Internet, and claims against providers that have no base or branch in Austria may be seized from the provider’s known debtors in Austria.
In the draft of the communication platform act, an attempt has been made to take into consideration the interest of all concerned parties, i.e. persons affected by hate postings as well as providers, and also to avoid interventions in the freedom of speech through the deletion of legal content due to fear of sanctions (so-called “over-blocking”). The new regulations will undoubtedly require additional effort and expense on the part of communication platform operators. Given that the assessment procedure for this draft legislation is still ongoing, it is yet to be seen whether and in what final form the act will be adopted.