Federal Law Gazette I - Issued on 23 December 2020 - No 151 9 of

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Federal Act enacting a Federal Act on measures to protect users on communication platforms
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FEDERAL LAW GAZETTE

OF THE REPUBLIC OF AUSTRIA

Volume 2020 Issued on 23 December 2020 Part I

151. Federal Act: Communication Platforms Act and amendment to the Austrian Communications Authority Act (Lower House: legislative session XXVII, government bill 463, committee report 509, p. 69; Upper House: 10457, committee report 10486, p. 917)

151. Federal Act adopting a Communication Platforms Act and amending the Austrian Communications Authority Act

The National Council (Nationalrat, the lower house of the Austrian Parliament) has decided the following:

Article 1

Federal Act on measures to protect users on communication platforms (Communication Platforms Act [Kommunikationsplattformen-Gesetz – KoPl-G])

Section 1

Object and scope of application

§ 1. (1) The provisions of this Federal Act serve to promote the responsible and transparent handling of user reports on the following content on communication platforms and the expeditious handling of such reports.

(2) Domestic and foreign providers of communication platforms (§ 2(4)) are not subject to the provisions of this Federal Act if:

1. the number of users in Austria authorised to access the communication platform by means of registration did not exceed an average of 100 000 people in the previous quarter; and

2. the turnover achieved with the operation of the communication platform in Austria did not exceed EUR 500 000 in the previous year.

(3) Providers of communication platforms that are only used to broker or sell goods or services, or whose main purpose is the provision of non-profit online encyclopaedias for imparting knowledge, are exempt from the obligations under this Federal Act, even if communication functions are made available to a larger group of people, regardless of the number of users of the communication platform and the amount of revenue generated with its operation. Media companies (§ 1(1)(6) of the Media Act [Mediengesetz - MedienG]) are also exempt if they provide communication platforms directly related to their journalistic content.

(4) At the request of a service provider, the supervisory authority shall determine whether they fall under the scope of this Federal Act. Service providers of communication platforms shall provide the supervisory authority (§ 8(1)) with all the information relevant to this determination.
§ 1. (1) This Federal Act serves to promote the responsible and transparent handling of user reports on the following content on communication platforms and the immediate handling of such reports.

(2) This Federal Act applies to domestic and foreign service providers that offer communication platforms (§ 2(4)) for profit, unless:

1. the average number of users in Austria authorised to access the communication platform by means of registration was less than 100 000 people in the previous calendar year; and

2. the turnover achieved with the operation of the communication platform in Austria was less than EUR 500 000 in the previous calendar year.

(3) Service providers of communication platforms:

1. that are only used to broker or sell goods or services and to broker real estate or job advertisements; or

2. whose main purpose is the provision of non-profit:

a) online encyclopaedias; or

b) education and learning platforms for imparting knowledge; or

3. that are offered by media companies (§ 1(1)(6) of the Media Act [MedienG], Federal Law Gazette No 314/1981) in direct relation to their journalistically crafted content;

are exempt from the obligations under this Federal Act in any case.

(4) Service providers of video sharing platforms (§ 2(12)) shall be exempt from the obligations of this Federal Act with regard to the broadcasts (§ 2(9)) and user-generated videos (§ 2(7)) they provide.

(5) At the request of a service provider, the supervisory authority must determine whether they fall under the scope of this Federal Act.

(6) The supervisory authority shall keep and duly publish a register of the service providers falling under this Federal Act. The register shall be updated annually and shall de declaratory. If, in the performance of its duties, the supervisory authority finds that the details in the register no longer reflect the facts, it shall make the appropriate corrections.

Definitions


1. Commercial premises: a permanent place of business through which a service provider’s activities are carried out in whole or in part;

2. Information Society service: a service usually provided electronically, at a distance and for a fee upon individual request by the recipient (§ 1(1)(2) of the Notification Act 1999 [Notifikationsgesetz 1999– NotifG 1999], Federal Law Gazette I No 183/1999), in particular the online sale of goods and services, online information offers, online advertising,

electronic search engines and data retrieval options, as well as services that transmit information via an electronic network that provides access to such or store a user’s information (§ 3(1) of the e-Commerce Act [E-Commerce-Gesetz– ECG], Federal Law Gazette I No 52/2001);

3. Service provider (provider): the natural or legal person who operates a communication platform;

4. Communication platform (platform): an information society service, the main purpose or an essential function of which is to enable the exchange of messages or presentations with intellectual content in written, aural or visual form between users and a larger group of other users by way of mass dissemination;
2. Information society service: a service usually provided electronically, at a distance and for a fee upon individual request by the recipient (§ 1(1)(2) of the Notification Act 1999 – NotifG 1999, Federal Law Gazette I No 183/1999), in particular the online sale of goods and services, online information offers, online advertising, electronic search engines and data retrieval possibilities, as well as services that transmit information via an electronic network that provides access to such or store a user’s information (§ 3(1) of the E-Commerce Act – ECG, Federal Law Gazette I No 152/2001);

3. Service provider: the natural or legal person who offers a communication platform;

4. Communication platform: an information society service, the main purpose or an essential function of which is to enable the exchange of messages or presentations with intellectual content in written, aural or visual form between users and a larger group of other users by way of mass dissemination;

5. Parent company: a company that controls one or more subsidiaries within the meaning of § 244 of the Austrian Corporate Code [Unternehmensgesetzbuch – UGB], Imperial Federal Law Gazette p. 219/1897;

6. Illegal content: Content that objectively constitutes one of the following offences and is not justified: Coercion (§ 105 Criminal Code [Strafgesetzbuch – StGB], Federal Law Gazette No 60/1974), dangerous threat (§ 107 StGB), persistent persecution (§ 107a StGB), continual harassment by means of telecommunications (§ 107c StGB), accusation of a judicial criminal act that has already been dismissed (§ 113 StGB), insult (§ 115 StGB), unauthorised image recordings (§ 120a StGB), blackmail (§ 144 StGB), disparagement of religious teachings (§ 188 StGB), pornographic representations of minors (§ 207a StGB), initiation of sexual contact with minors (§ 208a StGB), terrorists organisation (§ 278b StGB), instructions for committing a terrorist offence (§ 278f StGB), encouragement to commit terrorist offences and approval of terrorist offences (§ 282a StGB), incitement to hatred (§ 283 StGB), § 3d, § 3g, § 3h of the Prohibition Act, State Law Gazette No 13/1945;

7. Subsidiary: a company that is directly or indirectly controlled by a parent company within the meaning of § 244 UGB;

8. Group of companies: a parent company of a service provider, all of its subsidiaries and all other companies economically and legally affiliated with them.
6. User: any person who uses a communication platform, regardless of whether the person is registered on the communication platform;

7. User-generated video: a set of moving images, with or without sound, that is an individual item regardless of its length, is created by a user and is uploaded to a video sharing platform by this or another user;

8. Illegal content: Content that objectively constitutes one of the following offences and is not justified: Coercion (§ 105 StGB, Federal Law Gazette No 60/1974), dangerous threat (§ 107 StGB), persistent persecution (§ 107a StGB), ongoing harassment by means of telecommunications (§ 107c StGB), accusation of a judicial criminal act that has already been dismissed (§ 113 StGB), insult (§ 115 StGB), unauthorised recordings (§ 120a StGB), blackmail (§ 144 StGB), disparagement of religious teachings (§ 188 StGB), pornographic representations of minors (§ 207a StGB), initiation of sexual contact with minors (§ 208a StGB), terrorists organisation (§ 278b StGB), instructions for committing a terrorist offence (§ 278f StGB), encouragement to commit terrorist offences and approval of terrorist offences (§ 282a StGB), incitement to hatred (§ 283 StGB), § 3d, § 3g or § 3h of the Prohibition Act, State Law Gazette No 13/1945;

9. Broadcast: a single, self-contained part of an audiovisual media service that consists of a set of moving images, with or without sound and regardless of its length, constituting an individual item within a schedule or a catalogue established by a media service provider; in particular, this term covers feature-length films, video clips, sports events, situation comedies, documentaries, news, art and culture broadcasts, children’s broadcasts and original productions;

10. Subsidiary: a company controlled by a parent company within the meaning of § 244 of the Commercial Code [UGB], Imperial Federal Law Gazette p. 219/1897, including any subsidiary controlled indirectly by a parent company;

11. Group of companies: a parent company of a service provider, all of its subsidiaries and all other companies economically and legally affiliated with them;

12. Video sharing platform: a service as per Articles 56 and 57 of the Treaty on the Functioning of the European Union that has the principle purpose, a separable part or an essential function involving the provision of broadcasts (point 9) or user-generated videos (point 7) or both, for which the platform provider bears no editorial responsibility, to the public over electronic communication networks within the meaning of Article 2(1) of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (OJ L 321/36, 17.12.2018) in order to inform, entertain or educate, and whose organisation – including automated means or algorithms, in particular by indication, marking and arrangement – is determined by the platform provider.

Section 2


Reporting and review procedures

§ 3. (1) Service providers shall set up an effective and transparent procedure for handling and processing reports on allegedly illegal content available on the platform.

(2) Such a procedure shall in any case be designed in such a way that, by means of functionalities on the platform that are easy to find, constantly available and easy to use, users of the platform:

1. are able to report content, including the information required for an assessment, to the service provider; and
§ 3. (1) Service providers must set up an effective and transparent procedure for dealing with and processing reports on allegedly illegal content available on the communication platform.

(2) Such a process must in any case be designed in such a way that, by means of functionalities on the communication platform that are easy to find, constantly available and easy to use, users:

1. are able to report content, including the information required for an assessment, to the service provider;

2. receive an explanation of how their report will be dealt with and what the result of the procedure in question was; and

3. be informed expeditiously of the main reasons for the decision process the relevant report, including the possible time of removal or disabling. This information shall also be received by the user who uploaded the relevant content.
3. are informed immediately of the main reasons for the decision on dealing with the relevant report including the possible time of removal or blocking and of the option to apply for a review procedure (paragraph 4) and to participate in an complaints procedure (§ 7). This information shall also be sent to all users for whom the content in question was stored on the communication platform.

(3) In addition, service providers shall, by configuring the internal organisation of the reporting procedure:

1. ensure that reported content:

a. insofar as its illegality is already evident to a legal layperson without further investigation, is either removed or access to it is disabled expeditiously but no later than 24 hours after receipt of the report;

b. if its illegality becomes apparent only after a detailed examination, it is removed or access to it is disabled expeditiously after completion of this examination but no later than within 7 days of receipt of the report;

2. ensure that the user submitting a report and the user who uploaded the content in question are expeditiously informed about the possibility of participating in a complaint procedure (§ 7) and an application for a review procedure (§ 4);

3. in the event of disabling or deletion, back up the content concerned, the time of its creation and the data required to identify the author for evidence purposes, including for purposes of criminal

prosecution, and store it for a maximum of 10 weeks; this time limit may be exceeded in individual cases in the case of an express request from a law enforcement authority if the preservation of evidence would otherwise be thwarted.
a) insofar as its illegality is already evident to a legal layperson without further investigation, is either removed or access to it is blocked with immediate effect but no later than 24 hours after receipt of the report;

b) if its illegality becomes apparent only after a detailed examination, it is removed or access to it is blocked with immediate effect after completion of this examination but no later than within 7 days of receipt of the report;

2. in the event of blocking or deletion back up the content concerned, the time of its creation and the data required to identify the user for whom the content in question was stored on the communication platform, for evidence purposes, including for purposes of criminal prosecution, and to store it for a maximum of 10 weeks; this time limit may be exceeded in individual cases in the case of an express request from a law enforcement authority if the preservation of evidence would otherwise be thwarted; the data shall be erased if the grounds for processing no longer apply.

(4) Service providers shall also ensure that an effective and transparent procedure is in place to review their decision to disable or delete reported content (paragraph 3(1)). A review must take place if

1. in the event of a failure to disable or delete content, the user who submitted the report submits an application (paragraph 3(2)) to review this decision within 2 weeks of receiving the decision;

2. in the event that content is disabled or deleted, the user who uploaded the content to the communication platform submits an application (paragraph 3(2)) to review this decision within 2 weeks of receiving the decision.
1. in the event that content is not blocked or deleted, the user who submitted the report submits an application (paragraph 3(2)) to review this decision within 2 weeks of receiving the decision;

2. in the event that content is blocked or deleted, the user for whom the content was stored on the communication platform submits an application (paragraph 3(2)) to review this decision within 2 weeks of receiving the decision.

The service provider shall expeditiously inform the users named in subparagraphs 1 and 2 of the result of the review. The review procedure shall be completed within 2 weeks of the application.

(5) Personal data that is processed by the service provider in fulfilment of the obligations set out in paragraphs 2 to 4, with the exception of the content to be backed up in accordance with paragraph 3(3), shall be deleted expeditiously after the periods specified in paragraph 4(1) and (2) have expired and, in the event of a review pursuant to paragraph 4, after the review procedure has been completed. The content to be backed up in accordance with paragraph 3(3) shall be deleted after 10 weeks at the latest.

(6) Personal data about the person making the report may only be disclosed to this person.

(7) The service provider is not obliged to carry out a reporting or review procedure if, due to the type or frequency of the reports received, it can assume with a probability bordering on certainty that the reports were either automated or otherwise initiated in an improper manner.
(5) Personal data about the person making the report may only be disclosed to this person.

(6) The service provider is not obliged to carry out a reporting or review procedure if, due to the type or frequency of the reports received, it can assume with a probability bordering on certainty that the reports were either automated or otherwise initiated in an improper manner.

(7) The supervisory authority may issue an ordinance adopting additional provisions on the reporting procedure, in particular on the minimum standards for the reporting form used for this.

Reporting obligation

§ 4. (1) Service providers are obliged to prepare a report on the handling of reports of alleged illegal content on an annual basis (on a quarterly basis for communication platforms with over one million registered users) and to submit it to the supervisory authority no later than 1 month after the end of the calendar year covered in the report. In addition, the report shall simultaneously be permanently made available and easily accessible on the service provider’s own website at the same time as it is sent.
§ 4. (1) Service providers are obliged to prepare a report on the handling of reports of alleged illegal content on an annual basis (on a semi-annual basis for communication platforms with over one million registered users). They shall submit this report to the supervisory authority no later than 1 month after the end of the period covered in the report and make it permanently available and easily accessible on their own website at the same time as it is sent.

(2) The report shall contain the following points:


3. Descriptions of the number of reports of alleged illegal content received during the reporting period;

4. Overview of the number of reports of alleged illegal content that led to the deletion or disabling of the content reported during the reporting period, including information on which step of the examination (subparagraph 2) led to the deletion or disabling, as well as a summary description of the type of content;
4. Overview of the number of reports of alleged illegal content that led to the deletion or blocking of the content complained about during the reporting period, including information on which step of the examination (point 2) led to the deletion or blocking, as well as a summary description of the type of content;

5. Overview of the quantity, content and result of the review procedures (§ 3(4));


8. Overview of the number and type of cases in which the service provider has refrained from carrying out a reporting and review procedure (§ 3(7)).

(3) The supervisory authority (§ 8(1)) shall issue more detailed provisions on the structure of the reports and the scope of the reporting obligation by ordinance in order to ensure the informative value and comparability of the reports.

Responsible representative

§ 5. (1) To ensure accessibility and to comply with the provisions of this Federal Act as well as for official and judicial service of process, service providers shall appoint a person who meets the requirements of § 9(4) of the Administrative Penal Act [Verwaltungsstrafgesetz – VStG] 1991, Federal Law Gazette No 52/1991. In particular, this person must have the authority to issue orders required for compliance with the provisions of this Federal Act, as well as the knowledge of the German language required for cooperation with authorities and courts and the resources required to carry out their tasks.

(2) The contact details of the responsible representative are always to be made available to the user easily and directly. The supervisory authority shall be able to reach the responsible representative at any time.

(3) The responsible representative shall register for service of process by a delivery service within the meaning of §§ 28b and 35 of the Service of Documents Act [Zustellgesetz – ZustG], Federal Law Gazette No 200/1982, and indicate when registering that there are no periods within which service of process is to be excluded.

(4) The supervisory authority shall be informed expeditiously about the appointment of the responsible representative.