On 3 September 2020, the Austrian government introduced a draft of its long-anticipated Communication Platform Act (‘Kommunikationsplattformen-Gesetz’, KoPI-G), aimed at protected users of digital forums and social media platforms from falling victim to online hate speech. Modelled after the German network Enforcement Act (‘Netzdurchsetzunggesetz’, NetzDG), which received parliamentary approval in June 2017, the new regulations would, if passed, facilitate access to reporting and enforcement mechanisms, promote the transparent handling of such accounts and offer innovative ways for the monitoring and immediate treatment of the practices falling under its purview.

Which Communication Platforms are affected

The Austrian draft law is directed at:

• Communication platform providers with more than 100,000 Austrian users or annual revenues exceeding EUR 500 000 revenues in Austria (§1(2));
• Exceptions include online news forums, online encyclopaedias, online marketplaces for the brokerage or sale of goods/services as well as media companies (§1(3)).

What offenses are covered by the new regulations

The obligations apply to a number of offenses inter alia:

• Coercion (‘Nötigung’);
• Dangerous criminal threat (‘Gefährliche Drohung’);
• Stalking (‘Beharrliche Verfolgung’);
• Offensive and unauthorized photography (‘Unbefugte Bildaufnahmen’);
• Extortion (‘Erpressung’);
• Pornographic representation of minors (‘Pornographische Darstellung Minderjähriger’);
• Incitement to hatred (‘Verhetzung’).

A full list of the types of illegal content (‘rechtswidrige Inhalte’) covered under the draft law can be found under §2(6).

Duties and Obligations of Communication Platform Providers

Purporting to establish well-regulated and comprehensive due process channels to counter hateful conduct online, platforms are required to observe a number of procedural standards.

Reporting and Assessment Procedures (‘Melde-und Überprüfungsverfahren’)

• Guaranteeing and facilitating accessibility to reporting mechanisms as well as ensuring easy navigation, management and availability of said functionalities;
• Parties must be able to report content to allow for expedient assessment by the respective service provider, receive explanations on the procedure and outcome of said submission, be provided with reasons for the decision reached;
• Platform providers must ensure that:
  • Insofar as the illegality in question is evident to a person lacking legal training, the content must be deleted or access to it blocked within 24 hours after receipt of the report;
  • If illegality becomes apparent only after detailed examination, its removal must be guaranteed within seven days;
  • Users submitting a report will be immediately informed about the possibility of participating in a complaint and review procedure;
  • The content as well as data required to identify authors must be archived for a maximum duration of ten weeks for evidential purposes.

Duty to Report

• Channels to allow for the submission of evaluative reports by providers to a supervisory authority must be created;
• Providers must make takedown reports available either annually (100,000 users) or quarterly (> 1 million users);
• Such reports must contain information detailing e.g. descriptions and number of reports, the content and result of review procedures, the personnel and technical equipment, presentation of the organization, personnel and technical equipment, technical competence of staff responsible for processing reports and review procedures as well as the education, training and supervision of person responsible.

Responsible Agent

• Online platforms must designate points of contact responsible for:
  • Issuing orders to comply with federal law provisions;
  • Cooperating with authorities and courts;
  • Ensuring their availability to the supervisory authority and platform users;
  • Acting as recipient of documents for service of process purposes.

Non-Compliance and Fines

Failing to appoint a responsible agent or being negligent in following the authority’s request to do so, will cause providers to be subject to fines of up to EUR 10 million. Violations of the deletion requirement are sanctioned if repeatedly breached. Assessing the scope of the fine to be paid is determined on the basis of a number of factors listed under §10(2) such as:

• Financial profitability/strength;
• Volume of registered users;
• Prior breaches;
• The extent and duration of the negligence of the service provider in complying with the obligation;
• Willingness to contribute to truth finding;
• Extent of precautions taken to prevent future violations or instructions given to employees to abide by provisions as stipulated in the regulations.

Appeals Procedure

Appeals are to be submitted directly to the relevant platform. Complaints, however, may be issued to the Austrian Regulatory Authority for Broadcasting (Rundfunk und Telekom Regulierungs-GmbH), which offers administrative support to its independent supervisory body, the Austrian Communications Authority (KommAustria). Prior to contacting the complaints office, users must have taken steps to reach the communication platform provider itself and either not have received an answer or failed to resolve said dispute. It is the duty of the complaints office to propose an amicable solution or offer their opinion on the relevant content in question.

Comment

The new Austrian law initiative constitutes a vital step in addressing the mounting concerns surrounding online hate speech. By seeking to protect against the publication of discriminatory statements or posts inciting violence, its measures have been deemed instrumental in solidifying and expanding the space of the rule of law within the digital realm. Not only does the draft extend the reach of the offence of incitement from ethnic groups to private individuals belonging to such groups, its provisions have also been referred to as a milestone for women by targeting practices such as ‘up-skirting’ (one-third of 18 to 23-year-old women are subject online hate crimes).

While praised for offering crucial protectionist mechanisms to those that have withdrawn from public debates and continue to shy away from expressing their views freely and openly for fear of personal attack, others have expressed considerable concern over the draft law’s proclivity to censorship. Further, although primarily aimed at multinational network giants, severe criticism has also been voiced in relation to the broad definition of targeted platforms, causing chat functions of games (e.g. World-of-Warcraft) as well as open source development (e.g. Github) and recipe platforms to be affected.¹ In this regard, the regulation demonstrates both a threat to the economic survival of small communication platforms and an inhibiting factor to the growth and success of start-ups that may stay small so as to ensure compliance with and not exceed the sales threshold established under the draft provisions.

Unlike the preceding German NetzDG, the draft proposed by the Austrian government not only differs with regard to its application by covering not merely for-profit social networks but online platforms of any kind, it also offers new tools for platform regulation by imposing mandatory reporting obligations.

The organization Internet Service Providers Austria (ISPA), albeit welcoming the planned measures, has warned of the current trajectory towards a continuously growing number of national solutions. The Austrian draft proposal may ultimately serve to re-ignite and accelerate perpetual debates on the role assumed by communication platforms and offer an important template for the duties and obligations to be assumed by such providers. In light of the EU Commission’s planned Digital Services Act (its consultation period ended on 8 September 2020), it is to be hoped that the current draft may serve to counteract hate speech not only domestically but contribute to finding a uniform European solution.

Footnote

1. For more information see: Lohninger, Thomas. “Auf Die Großen Geschossen, Die Kleinen Getroffen! Erste Analyse Des NetzDG/KoPlG.” Startseite, 22 Sept. 2020, epicenter.works/content/auf-die-grossen-geschossen-die-kleinen-getroffen-erste-analyse-des-netzdgkoplg [accessed 28.09.2020].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances