FACTS
As of 1st January 2021, the KoPl-G entered into force in Austria as part of a package of laws against Online Hate Speech. It implemented various obligations, such as the implementation of reporting, review and complaint procedures, for basically (with a few exceptions) all domestic and also foreign providers of communication platforms operating with the intention of making a profit and a certain turnover or number of users in Austria. Violations of these obligations can be penalized by the supervisory authority – the Austrian Communications Authority ("KommAustria") – with fines of up to € 10 million. However, according to Art 1 para 5 KoPl-G service providers also have the possibility to ask the supervisory authority to determine, whether they are subject to the KoPl-G or not.
This is exactly what the probably largest and best-known providers of communication platforms Google, Meta (in particular Facebook & Instagram) and Tiktok – all of them with their registered (European) seat in Ireland – made use of shortly after the KoPl-G’s entry into force and applied for a decision, that the KoPl-G did not apply to them.
However, KommAustria did not share this view and, therefore, found that the KoPl-G was also applicable to Google, Meta and Tiktok. The aforementioned providers challenged this decision all the way to the Austrian Administrative Court ("VwGH" – one of the Austrian supreme courts), arguing, among other things, that the provisions of the KoPl-G were not compatible with EU-law – in particular with the free movement of services and the country-of-origin principles.
Since the Administrative Court was also unable to conclusively assess whether the provisions of the Austrian KoPl-G comply with EU-law, it referred three questions to the ECJ for a preliminary ruling on 24th May 2022.
OPINION OF THE ADVOCATE GENERAL
The first of these questions concerning the interpretation of the E-Commerce Directive (Directive 2000/31/EC) and the therein stipulated country-of-origin principle, as well as the possible exceptions thereto, was commented on by the Advocate General, Maciej Szpunar, in his Opinion from 8th June 2023.
According to the above-mentioned Directive, information society services shall be subject to the legal system of the country on the territory of which they are established ("country-of-origin principle") and other Member States may not, in principle, provide for stricter requirements. Although Art. 3 (4) of the E-Commerce Directive provides for an exception to this principle under certain conditions "with regard to a specific information society service", from the Advocate General’s point of view general-abstract legal measures – as also provided for by the Austrian KoPl-G – restrict the free movement of information society services from a Member State without constituting a permissible exception to the country-of-origin principle (recital 73).
Such general-abstract legal measures would therefore not be in line with the aforementioned directive and thus with EU-law. Following his argumentation in Case C-390/18 (Airbnb Ireland), he namely is of the opinion that such measures, which relate to a generally circumscribed category of certain information society services and thus apply to any provider of a category of information society services, without those measures being taken on a case-by-case basis, would be tantamount to allowing the "fragmentation of the internal market by national regulations".
TO BE CONTINUED
The ECJ has not yet ruled. In practice, however, it often agrees with the opinion of the Advocate General. It therefore remains to be seen whether it will in this case (C-376/22) as well.Link to the opinion of the Advocate General: tinyurl.com/Opinion-of-Advocate-General
Article provided by INPLP member: Árpád Geréd (MGLP Rechtsanwälte, Austria)
Co-Author: Alexandra Prodan
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