ZÖCHLING v. AUSTRIA JUDGMENT
5. On 23 September 2016 the applicant asked the company to delete the
comments and to disclose the users’ data. The company deleted the comments
within a few hours after receipt of the request and informed the applicant of
the users’ email addresses on 29 September 2016. The comments had been
visible on the portal for 12 days. The users in question were blocked. The
applicant subsequently failed to obtain the names and postal addresses of the
users because their email providers refused to share those data with her.
6. The applicant lodged an application with the Vienna Regional Criminal
Court against the company pursuant to section 6 § 1 of the Media Act (see
Armellini and Others v. Austria, no. 14134/07, § 24, 16 April 2015) claiming
damages for the publication of insulting statements. The court granted the
applicant’s request. It noted that section 6 § 2.3a of the Media Act exempted
media owners (Medieninhaber) from liability for content available on their
websites provided that the media owners or one of their employees or agents
had not disregarded due diligence. Section 16 of the E-Commerce Act
provided that a host provider was not liable for the information stored at the
request of a user on condition that the provider did not have actual knowledge
of any illegal activity or [illegal] information and, as regards claims for
damages, was not aware of facts or circumstances from which any illegal
activity or information was apparent, or the provider, upon obtaining such
knowledge or awareness, acted expeditiously to remove or to disable access
to [such] information (see Standard Verlagsgesellschaft mbH
v. Austria (no. 3), no. 39378/15, § 36, 7 December 2021). The company had
deleted the comments immediately after notification by the applicant.
Nevertheless, due diligence in the sense of section 6 § 2.3a of the Media Act
entailed wider obligations than section 16 of the E-Commerce Act.
Otherwise, the legislature would have drafted section 6 § 2.3a of the Media
Act in the same way as section 16 of the E-Commerce Act. Taking into
account among other things the role of the company, the content of the article
(see paragraph 4 above), which intentionally stirred up antipathies against the
applicant, the content of the comments, which contained incitements to
violence against the applicant, and the fact that offensive comments about the
applicant had repeatedly been posted under articles published on the portal
since September 2015, the court concluded that the company had not fulfilled
the requirements for exemption from liability set out in section 6 § 2.3a of the
Media Act.
7. On 20 July 2017 the Court of Appeal quashed the decision of the
Regional Criminal Court on an appeal by the company. It found that – in
accordance with section 16 of the E-Commerce Act – section 6 § 2.3a of the
Media Act required media owners to delete statements without delay if they
became aware that such statements fulfilled the offences referred to in
section 6 § 1 of the Media Act. Media owners did not have the obligation to
monitor all comments posted on their website. Such an obligation would
violate section 18 of the E-Commerce Act. The Court of Appeal referred to
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