Since the seizure of an Internet provider´s hardware in Vienna in 1997, the liability of Internet providers for the content of their service has become an increasingly discussed topic in Austria.
Newsgroup providers would appear to be exposed to a special risk as their services provide the users with a forum for statements which may violate the law. However, the question of liability of access and service Internet providers in Austria is still uncertain characterized by the lack of specific legal rules or jurisprudence and scarcity of pertinent literature.
This article therefore examines whether and under which conditions newsgroup providers in Austria may be held liable according to criminal, civil, copyright or media law, focusing on the criminal law aspects of this issue.
A. The legal situation in Germany and the position of the European Commission
In contrast to the legal situation in Austria, the German legislator has regulated the liability of online service providers in a separate legal act, the Act on the Use of Information Services (TDG), which entered into force on August 1, 1997.
The TDG generally distinguishes between access providers (merely providing access to the Internet) and service providers offering their customers additional service (as e.g., their own newsgroup).
An access provider is in general not liable for messages its customers transmit via the Internet (sec 5 TDG). A service provider may only be held liable if
In its Communication to the European Parliament1, the European Commission also distinguished between mere Internet access providers and service providers which render additional services. The Commission suggested to the Member States to hold the second group of providers liable if they may reasonably be expected to identify an illegal document or if they fail to take appropriate measures to remove material in breach of the law once they are aware of it.
The principles of the TDG and the Communication in the given context thus reveal that Internet providers are expected to remove illegal content as far as they are aware of it and as far as technically feasible, or at least to prevent access of other customers to such content.
B. Legal Situation in Austria - Criminal Law Aspects
Concerning the (current) legal situation in Austria, it first has to be examined whether and subject to which conditions Austrian criminal law applies at all to the activities of national and international newsgroup providers. Subsequently, it has to be examined on which conditions a provider2 might be subject to liability under criminal law if one of its customers spreads content in breach of criminal law in the provider´s newsgroup.
I. International Criminal Law
The Internet being a global information system, first the preconditions for Austrian criminal law to apply have to be met.
Pursuant to sec 62 et seq of the Austrian Criminal Code Austrian criminal law applies to all offenses committed within Austria. An offense is deemed to have been committed in Austria if the perpetrator acted in Austria or if any effect corresponding to the elements of such offense occurred fully or partly in Austria.
The facts and circumstances are thus clear if the provider concerned (via whose services the content relevant under criminal law is transmitted) is an Austrian resident. In such case, the provider acts in Austria and is thus subject to Austrian criminal law. However, the Austrian criminal law also applies to providers acting abroad if access to such provider´s offer is possible from Austria as in such case the effect corresponding to the elements of the offense occurs in Austria.
It thus follows that in general any provider of a newsgroup - regardless of its location - might be liable to prosecution in Austria if access to illegal content of its newsgroup is possible from Austria. As this would imply a rather extensive scope of the Austrian criminal law, literature restricts sec 62 et seq Austrian Criminal Code according to its purpose so that the Austrian criminal law applies only if the actual perpetrator intends to influence Austria via the Internet.3
II. Possible Content Relevant under Criminal Law
Until the Austrian Telecommunications Act 1997 ("TKG") entered into force on July 1, 1997, sec 16 of the Telecommunications Act 1993, then in force, required the holders of telecommunication installations (as online providers) to take all appropriate measures to exclude transmission of information in violation of public order and decency. Any breach of this obligation was liable to a fine. There is, however, no corresponding provision to be found in the TKG. Punishability of online providers can thus only arise from behavior that is illegal according to other criminal law provisions.
Possible newsgroup messages that are prohibited according to criminal law might be national-socialist ideology and pornographic content as well as content that is morally harmful for children and adolescents. The spread (and contribution to such spread) of such news might constitute an offence in the following ways:
The posting of certain content in a newsgroup might also constitute an offence (under general criminal law), as for instance slander or other offenses injuring a person´s reputation (section 111 et seq StGB), discredit (section 152 StGB), dangerous threat (section 107 StGB) or libel (section 297 StGB).
I. Criminal liability of the provider for prohibited content in its newsgroup?
Apart from the actual perpetrator of an illegal action, any other person contributing to the commission of the act is punishable as a so-called co-perpetrator (sec 12 StGB). A co-perpetrator is generally subject to the same criminal sanction as the actual perpetrator. Any person enabling, facilitating, securing or otherwise promoting the actual perpetrator by physically or psychologically supporting him is deemed to contribute to a criminal act provided that the contribution is causal for the commission of the act4.
In the present context, the following contributory acts of a provider to the spread of criminally relevant newsgroup content by customers are theoretically possible:5
From this enumeration it is obvious that the online provider might be accused of either an active commission (of providing a communications link and the possibility of posting) or an omission (of blocking measures). The distinction between commission and omission is important as under Austrian criminal law omissions are only punishable under certain conditions. It has thus to be examined whether an online provider might be held liable according to criminal law only for an active commission (i.e., an "offense by commission"), only for an omission (i.e., an "offense by omission") or for both criminally relevant forms of action and whether the special requirements for an offense by omission are actually given.
Subsequently, it has to be examined whether the provider would in general fulfill the preconditions (required both, in case of an offense by commission or by omission) for criminal liability for posting of prohibited newsgroup content originated with third-parties. The provider´s punishability as a co-perpetrator according to the general rules of the Austrian Criminal Code would, however, require an action which corresponds to the physical elements of an offence, is causal, materially attributable, illegal and faulty.
1. Distinction between positive commission and omission
It is conceivable that an on-line provider might be held liable under Austrian criminal law for the omission of failing to block prohibited content. This arises from the fact that the mere provision of a communications link (and thus the active commission of a provider) is in most cases not punishable for lack of intention (see below), so that the omission could trigger liability itself.
According to sec 2 StGB, criminal liability of an online provider for omitting to block the posting of prohibited content in its medium requires the provider´s possibility of acting and the existence of a "guarantor position".
a) Possibility of acting
In order for an omission to constitute an offence, it is essential that it would have been possible for the perpetrator to prevent commission of the offence.6 This means that an online provider has to be in a position to effectively block its customers´ access to certain prohibited content or to terminate the account of a known actual perpetrator to the services offered. It has to be taken into account that the present state of the art enables a newsgroup operator to prevent direct access to its self-operated news service but not to prevent the users´ access to such newsgroup via another provider´s Internet server.7 Blocking direct access to a newsgroup would thus only constitute an obstacle but no total prevention. In order to fully exclude access to certain content the provider would have to block global access for its customers. Due to the multitude of newsservers and the fact that the provider generally does not know which newsservers are offering the newsgroup posted in its own newsserver, this will be neither technically nor practically feasible. 8
Due to the presently insufficient technical means there is thus only little or no way for the online provider to efficiently block its customers´ access to Internet content and to terminate the customer relationship with an actual perpetrator.
It may thus be assumed that the provider is not to be held liable under criminal law for lack of an individual possibility of acting related to the elements of an offense.9
It is, however, of course possible that the technical requirements for blocking newsgroup content will be given in the future, creating a possibility of acting for online providers.
b) Guarantor position of an online provider
The second prerequisite for punishability for an omission is the "guarantor position" of the perpetrator, i.e., the obligation to prevent an effect relevant under criminal law due to a special obligation which the provider is subject to.10 In Austria, such obligation to prevent the effect may be based either on law, contract or previous commissions (so-called "implied responsibility").
A guarantor position on a statutory basis does not apply to online providers since there is no explicit statutory obligation of providers to block prohibited content.
Also a guarantor position on the basis of a contract is rather unlikely as providers generally refrain from undertaking vis-à-vis their customers to block prohibited content or to refuse access to known originators of illegal content. In most cases also there is no relevant tacit contractual accessory obligation as most providers declare themselves not to be liable for illegal content distributed via their service.
Eventually, the online provider could hold a guarantor position on the basis of the principle of implied responsibility. According to this principle, developed in jurisprudence, any person endangering an object of legal protection by its behavior is obliged to ensure (i.e., if necessary, become active) that such danger is aversed.11 According to prevailing view, it is not decisive whether such previous commission was in material breach of duty, thus legally caused dangers may also give rise to a guarantor position.12 A previous commission may, however, create a guarantor position only if the danger it caused is closely and typically connected with such previous commission. This is to exclude, in particular, commissions within the legal limit according to criminal law:13 It could be argued that the provision of services by online providers is within the socially accepted and permissible range of behavior in terms of criminal law. There are, however, some differing views to be found in pertinent literature, assuming a guarantor position resulting from the implied responsibility of an online provider.14
Summing up it may thus be stated that there are good reasons for the non-existence of guarantor obligations of an online service provider to prevent third-parties´ offenses via its services. This is sufficient to exclude punishability for omissions.
2. General prerequisites for punishability for offenses by commission and by omission
Offenses by commission and by omission require (as already mentioned) a series of general preconditions in order to entail criminal responsibility.
Apart from certain other elements, criminal liability in particular requires the perpetrator´s wrongful intent. A provider could only be held liable according to criminal law only if its intent was to spread illegal content by providing the newsgroup or by omitting appropriate measures to prevent such spread. A so-called indirect intent, i.e., the perpetrator seriously deeming the commission of an offense possible and accepting it, would suffice.
In this context, it is particularly important to distinguish "indirect intent" and "conscious negligence", the latter of which does not entail criminal liability (within the frame of an intentional offence). The significant difference is that with indirect intent the perpetrator accepts the desired commission of the facts of an offence whereas with conscious negligence he trusts that the facts of an offence will not materialise.15 In general, it is thus assumed that providers declaring that they do not approve of the relevant Internet content and that they have no possibility to efficiently block such content are not acting with intent pursuant to the Austrian Criminal Code.16
In order to diminish the risk of punishment a provider should thus make it clear that it merely accepts content relevant under criminal law but does not approve of it. A possible way to do so would be to explicitly prohibit customers from spreading illegal content (e.g., by inserting a clause in the contract concluded with the customer and in addition by a installing an appropriate pop-up to appear on the screen when the customer logs into the newsgroup). In addition, it should be made clear that the provider explicitly dissociates from any punishable content. Users should be informed of the possible consequences of any violation of such prohibition under criminal and civil law. A warning of possible illegal content and the information that blocking of such content is not yet technically feasible would also be useful.17
Any provider becoming aware of an individual case of prohibited newsgroup content should immediately block the originator´s access to the newsserver (as far as technically possible). In the event of spread of further illegal content by the same customer, the provider might otherwise be accused of approval of the infringement or at least of indirect intent.
However, as already explained above, omission of access blocking would still not render the provider liable as the prerequisites for an offense by omission are generally missing.
II. Criminal Liability according to Media Law
A provider´s liability under criminal law would also be possible on the basis of the provisions of the Austrian Media Act. A newsgroup can be argued to be covered by the term "medium" pursuant to sec 1 para (1) Media Act. A media content offense is any action liable to punishment which is committed via a medium´s content and consists of an information or presentation addressed to a larger number of persons. For the criminal liability of a media operator, the general principles of the Austrian Criminal Code thus apply, as mentioned above.18
B. Austrian Copyright Law Aspects
Apart from a possible liability under criminal law, a provider of a newsgroup might also be subject to liability under Austrian copyright law, if works under copyright protection are multiplied by means of the provider´s service without permission of the author.
In a 1994 decision19, the Austrian Supreme Court dealt in depth with the question of such "indirect copyright infringement". The Supreme Court ruled that in cases of copyright infringement, generally not only the actual perpetrator but also any co-perpetrator whose behavior promotes or enables the infringement of another, may be held liable. The liability of the co-perpetrator requires, however, that he consciously (and thus with specific intent) wished to promote the infringement. A merely negligent contribution is not sufficient.
This means that a provider may be held liable under copyright law for newsgroup content posted by users if it has contributed to such posting with intent.
C. Liability according to Austrian Civil Law
I. Liability according to the Austrian Media Act
As a media operator, a newsgroup provider in Austria could be subject to special civil liability pursuant to secs 6 and 7 Austrian Media Act. Pursuant to these provisions, the media operator may be required to pay a compensation of up to 500,000 Sch in the case of commission of an offense injuring a person´s reputation (sec 111 et seq StGB) or slander (sec 297 StGB) or public exposure of a person´s private sphere via its medium. In addition, the media operator may be obligated to publish free of charge a counter-statement in its medium pursuant to sec 9 Austrian Media Act. As such obligation to compensation is merely based on the statutory elements of the offenses concerned, the media operator is liable regardless of fault for the publication of the incriminating content.20
It may, however, be argued that the limitations of liability provided in sections 6 and 7 Austrian Media Act according to which a media operator is not liable for illegal remarks in TV or radio live shows might analogously apply to a newsgroup provider. Also such provider (similar to a radio operator in a live show) has no direct influence on the content transmitted via its medium and discontinuation of the service would violate public interest.
In general, it can still not be excluded that a provider might be subject to liability under civil law according to sections 6 and 7 Austrian Media Act. In order to diminish the risk of such liability we would thus recommend the provider to take the necessary measures to prevent illegal newsgroup content outlined above.
II. Liability according to general civil law
Liability of an online service provider for content provided in its medium could also be based on the liability provisions of the Austrian Civil Code (ABGB). An obligation to pay damages requires a faulty and illegal action by the wrongdoer; this may be considered by the violation of a required standard of behavior or by the infringement of an object of absolute legal protection of another person. Content published in a newsgroup may infringe various rights of absolute protection of other persons, as e.g., the right to use of a name (section 43 ABGB), the right to protection of one´s own image (section 78 Copyright Act), the right to honor (section 1330 ABGB) or a trade mark right under the Trademark Protection Act. It is questionable whether the service provider may be subject to damages under civil law in addition to the actual perpetrator.
Under the Austrian law of damages it is generally accepted that a person creating a source of danger is subject to a special obligation to exercise care towards third parties requiring the person - to an appropriate extent - to warn the participants and to prevent damage to others.21 An on-line service provider also creates a source of danger for the infringement of rights of absolute protection and is thus subject to such special duty, the extent of which, however, differs from case to case. As an identification and blocking of detrimental content is not yet technically feasible, it may be argued that the duty of a provider towards third parties is generally limited to warning the users of possible illegal content and taking additional measures (e.g., an identification requirement for the users or the appointment of a security commissioner).22
If a newsgroup provider becomes aware of a case of prohibited content in its newsgroup, the provider should immediately block the originator´s access to the newsserver (as far as technically feasible). Otherwise, the provider might be subject to a civil law claim for discontinuance, regardless of fault, by the infringed person.
The question of liability according to criminal, copyright, media and civil law of online service providers in Austria for illegal content distributed via their services has not yet been fully resolved. Unlike Germany, in Austria there is no explicit statutory basis for the liability of service providers. Although liability of a provider (in particular according to the civil law provisions of the Austrian Media Act) might not be generally excluded, the provider may significantly reduce the risk of liability by taking appropriate measures such as explicitly prohibiting any posting of prohibited content, warning the users of possible detrimental content or applying any adequate technical facility available in order to block prohibited content.
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