January 23, 2014 (later confirmed in 6 Ob 188/14m, December 15, 2014 and 6 Ob 145/14p, February 19, 2015)
(1) An Austrian politician sued the publisher of an online newspaper for disclosure of the names and email addresses of users who posted allegedly infringing comments in the discussion forum under a certain article about the politician. (2) The Court confirmed that the defendant was obliged to disclose the information about the users according to Section 18 (4) ECG. The plaintiff did not have to prove that the comments were infringing. He only had to show probable cause why the comments were infringing. Further the Court ruled that the protection of sources due to journalist confidentiality in Section 31 Mediengesetz (Media act) was not applicable.
(1) An Austrian Bishop claimed that an online newspaper article infringed his personality rights. He sued the newspaper publisher for injunctive relief. The defendant claimed that he is not a hosting provider and therefore cannot be sued for injunctive relief. (2) Due to the defendant's misconception about the interpretation of Section 16 ECG, the Court had to point out that Section 16 ECG does not establish the liability of hosting providers, but rather determines the conditions under which they are not liable for the actions of third parties. The Court also pointed out that hosting providers can be sued for injunctive relief (Section 19 ECG) regardless of Sections 13-17 ECG.
The safe harbors for intermediaries of the E-Commerce Directive are incorporated into Austrian national law by the E-Commerce-Act (E-Commerce-Gesetz - ECG). Section V of this act deals with the exclusion of liability for mere access providers (Section 13), search engine services (Section 14), caching providers (Section 15), hosting providers (Section 16) and link providers (Section 17). See also IRIS 2002-3:12/22.
In the second decision regarding the domain www.fpo.at, the Court decided that the domain name authority is obliged to block the domain when the infringement of someone’s right is apparent to a 'legal layman'.
(1) A pharmaceutical company is the holder of a registered trademark 'Glucochondrin'. A third party has used the word 'glucochondrin' for the purposes of keyword advertising in Google Adwords. The trademark holder sued Google for the trademark infringement. (2) The Court ruled that the operator of a search engine cannot be held liable for trade mark infringement by a third party using its keyword advertising tool if the infringement is not apparent to a ‘legal layman’ and if the operator hadn’t been informed of the infringement.
The claimant sued the hosting provider for damage allegedly caused by the users of an online guest book which the defendant operates. The Court stated that a hosting provider is excluded from direct civil or criminal liability. However, he is not excluded from civil injunctive relief which exists regardless of culpability.