The new legislation against Online Hate Speech – A brief overview

We all have them, we all use them, social media platforms and apps like Facebook, Instagram, Snapchat, Tik Tok and many more. The daily, even hourly, use of social media has long ceased to be a rarity. On the contrary, they have become part of our everyday lives, starting at an early age. But dealing with social media is not always easy; more and more often, users are confronted with hate messages on the Internet – be it trivial insults and cyberbullying or even terroristic content, threats and stalking – the digital spread of such illegal content is unstoppable, or isn’t it?

Under certain circumstances “hate postings” and “cyberbullying” could also constitute criminal offenses before the new legislation. Also victims were already able to make claims under civil and media law even before the new laws entered into force. However, as of January 1^st, 2021, the new Austrian “Hate on the Net Prevention Act” (“Hass-im-Netz-Bekämpfungsgesetz; short: HiNBG”) and the Austrian “Communication-Platforms-Act” („Kommunikationsplattformen-Gesetz; short: KoPl-G”), which operators had to implement by April 1^st, 2021 – and have already done so to great media effect in some cases – entered into force. Thus, criminal offenses have now been expanded and it has henceforth been made easier for those affected to enforce the law: Also new obligations for communication platforms have been determined. The new regulations at a glance:

1. “Hate on the Net Prevention Act”:

a) Criminal Law:

• Extension of Article 107c of the Austrian Criminal Code – tightening in the areas of cyber-crime and protection of likeness. Cyber bullying is now punishable after the first posting (e.g., the first or one-time publication of nudes).
• Extension Article 283 of the Austrian Criminal Code (Incitement) – it is henceforth also punishable, if individuals are incited on the basis of their religion, ethnicity or disability.
• New Article 120a of the Austrian Criminal Code – Criminalization of so-called “upskirting“; it is a criminal provision against unauthorized visual recordings of intimate areas and the dissemination of such recordings.

b) Media Law:

• Raise of the compensation amounts under the Austrian Media Act for violations of personality rights by a medium to up to € 40,000 or € 100,000 in particularly severe cases and introduction of a minimum compensation (€ 100).

 c) Remedies and enforcement:

• Report/request for deletion and resulting removal/blocking of illegal content by the communication platform (see below for more details).
• Claim against the platform is possible, if it does not delete illegal content despite being requested to do so.
• It is still possible to report an offence, if the content of a posting is punishable. This possibility is also given, if the (real) name of the author is not (yet) known.
• Action for injunction including the claim for removal against the author of the posting. If the alleged infringement can be conclusively derived from the complaint, courts may henceforth issue an injunction without an oral hearing. The form for the claim to be submitted to the district court and the application for injunction can be downloaded from justizonline.gv.at.
• Extension of free psychosocial and legal process support for victims.

2. “Communication Platforms Act”:

a) Who is affected?

• In principle, all domestic and foreign providers of communication platforms that operate for profit with
  • more than 100,000 registered users in Austria or
  • more than € 500,000 revenue generated in Austria.
• Exceptions:
  • Platforms that offer goods or services (e.g. eBay, “Willhaben”) as well as real estate platforms or platforms, that publish job ads;
  • Non-profit online encyclopedias (e.g. Wikipedia) as well as education and learning platforms for knowledge transfer;
  • Platforms of media companies in connection with their journalistic offerings (e.g. newspaper forums);
  • Video sharing platforms (e.g. YouTube).
• According to applicable EU law, which takes precedence over national law, however, the law of the country in which the platform is based in applies to service providers on the Internet (“country of origin principle”). Thus, in principle, only Austrian platforms are directly affected. Whether the new Austrian Communications Platforms Act will therefore have the desired effect in practice remains to be seen. However, “Facebook”, for example, has already implemented the new legal requirements on its platforms (including Instagram) and has also emphatically communicated the new measures against online Hate Speech. True to the motto: “Do good and talk about it.”

b) Requirements and obligations of communication platforms:

• Provision of an effective and transparent reporting procedure for alleged illegal content that offers a simple and permanently available reporting option. The reporting function must also explain how reports are handled and provide information on the outcome of the reporting procedure and the main reasons for the decision, as well as the date of any removal or blocking.
• Provision of an effective and transparent review process (regarding decisions on reports), including information about it.
• Provision of a complaint procedure regarding a possible inadequacy of the reporting and/or review procedures provided, as well as information about its use.
• Immediate deletion/blocking of obviously illegal content/postings (at the latest within 24h after report).
• Deletion of any other illegal content/postings (i.e. if the illegality is not obvious) within a maximum of 7 days after report.
• Annual or semi-annual (for platforms with more than 1 million registered users) reporting obligation to KommAustria (= supervisory authority) on the handling of reports.
• Appointment of a responsible representative and authorized recipient.

The implementation period for communication platforms provided by law has expired with March 31^st, 2021. Since this date, the required systems for reporting and reviewing illegal content must be in place. For example, Austrian users have had the opportunity to use the new simplified reporting options on Facebook and Instagram and thus defend themselves against illegal and criminally relevant content/postings since April 1^st, 2021. The introduction of these simplified reporting options by international communication platforms is very pleasing with regard to the “country of origin principle” applicable under EU law.

c) Fines:

Depending on the severity of the violation, the financial strength of the platform, the number of registered users and the frequency/repetition of violations, there are penalties in the amount of:

• Up to € 1 million if no responsible representative and/or authorized recipient is appointed,
• Up to € 10 million if
  • no or no suitable reporting procedure is provided,
  • no measures are taken to assess reports and resulting removals/blockings,
  • the reporting obligation is not or not properly fulfilled,
  • no measures are taken to ensure that removed/blocked content is secured and stored for evidentiary purposes,
  • no or no effective and transparent review procedure is provided,
  • information about personal data of the person reporting is provided to other persons than the person reporting;
• Additional penalties are provided for if the contact details of the responsible representative and/or authorized recipient are not easily accessible and/or the communication platform fails to fulfill its other obligations towards KommAustria.

Click here for the HiNBG and the KoPl-G.

If you have any questions, do not hesitate to contact: Árpád Geréd, Alexandra Prodan.

Status: 26.04.2021