Social Media is omnipresent these days and individuals as well as companies increasingly use these instruments as communication and marketing tools. Moreover, the development of Social Media platforms, like interactive online rating and comparison platforms, is also of interest for the start-up sector. However, this increasing importance of Social Media also raises questions about the liability for the published content and legal remedies to protect and enforce affected legal positions.
1. Social Media and its effects
Austrian law does not define "Social Media". However, the common understanding is that Social Media are media characterised in particular by the possibility for users to network with each other and exchange data (i.e. to engage in multilateral communication) and a high degree of user-generated content. In addition, Social Media has a very low level of content control and a high level of anonymity, facilitating phenomena like fake news, fake accounts and social bots.
In a nutshell, Social Media has positive and negative effects. On the one hand it has never been easier to spread and receive information and opinions and to stay in touch with family, friends, colleagues and others; on the other, there is an ever-greater danger that these communication tools will be misused, including for insults or defamation, "shitstorms" or the mere dissemination of fake news and lies to influence the public perception and discussion.
2. Legal framework
Activities in and in connection with Social Media must comply with applicable laws, just like activities in the real world. However, Austrian law provides for certain provisions which have a strong focus on online activities affecting users of Social Media as well as the providers of such platforms.
2.1 Austrian Criminal Code
The provisions of the Austrian Criminal Code ("ACC") are generally not limited to activities in the real world, but also cover virtual acts, like posting or sharing illegal content on Social Media. Nevertheless, the ACC contains provisions which are especially relevant for illegal behaviour in Social Media such as Cyberbullying (Art 107c ACC), Defamation (Art 111 ACC) or Incitement (Art 283 ACC). In addition, companies operating Social Media platforms may under certain special conditions face criminal liability under the Austrian Act on Corporate Criminal Liability (see our Legal Insights of 20 June 2017).
Although the ACC provides ways to counter illegal behaviour in Social Media, practical enforcement still faces some hurdles. First, it needs to be assessed whether Austrian jurisdiction even applies. Especially when it comes to virtual acts in the (globally available) internet, it is sometimes difficult to assess whether the "virtual offence" has been committed in Austria. Moreover, some offences are subject to private charges, which limit the possibilities of investigation, and some legal questions in the context of virtual acts, e.g. the criminal relevance of a "Like" of an illegal posting, are still unclear.
In this context, victims of illegal behaviour in Social Media as well as companies dealing with such criminal activities among their staff are well advised to seek professional legal assistance to protect their rights.
2.2 Austrian Media Act
The Austrian Media Act ("AMA") aims to protect from infringements of personal rights in media with broad publicity, which may also include Social Media. In particular, the AMA provides for the possibility to receive compensation for defamation or the disclosure of certain aspects of private life in a rather quick proceeding with certain facilitations, i.e. it is not necessary to provide evidence of actual damage, though the amount of compensation is capped. Moreover, under the AMA a counterstatement can be requested if incorrect statements are published.
Claims under the AMA are directed against the media owner, i.e. basically the person taking care of the content and dissemination of the media. According to the Austrian Supreme Court, even operators of a Facebook page may qualify as media owners if they are ultimately responsible for the content1, which is why professional users of Social Media platforms may also qualify as media owners.
Nevertheless, media owners may be discharged from liability under the AMA if they operated with due diligence, which includes in particular reacting quickly when gaining knowledge about illegal content. This obligation is generally stricter if the media owner operates professionally (e.g. a professional Facebook page for marketing purposes).
2.3 E-Commerce Act
A person who offers virtual space for users and stores their content qualifies as a host-provider pursuant to the E-Commerce Act, which includes operators of online platforms that enable other users to comment on contributions on the page.2 Therefore, providers of Social Media platforms, like an interactive online rating portal, may also qualify as host-providers.
Host-providers are generally not liable for the content published by the users on the provided platform. However, if host-providers gain knowledge of illegal content, they need to act without undue delay and delete the content or block the access. Case law shows that host-providers often have a very short period of time from gaining knowledge of potential illegal content to assessing the respective content and taking further action.
3. What to take care of
This brief look at parts of the legal framework of Social Media shows that private and professional users as well as providers of Social Media platforms need to comply with various legal requirements, which is why risk-mitigating strategies are recommendable.
- Privateusers must ensure that their virtual actions are in line with applicable laws, which is generally the case if these would also be permitted in real life. However, the ACC provides for certain offences that demand particular attention in the context of Social Media.
- Professional users of Social Media platforms, like start-up companies using Social Media channels for marketing, must ensure that they do not publish illegal content and generally act with due diligence. Therefore, in addition to setting internal guidelines and policies, Social Media administrators are advised to establish clear internal structures to deal with possible illegal content in due time.
- Providers of Social Media platforms, like a start-up providing an online rating platform for certain services where users can comment and interact, should also implement clear internal structures and policies to react to possible illegal content on time.
Moreover, persons whose rights are affected by virtual acts on Social Media have various legal remedies to protect their position. As enforcement usually requires a legal assessment of the actual case, professional legal assistance is recommendable.
If you are seeking legal advice regarding compliance with applicable laws or enforcement of rights in the context of Social Media, do not hesitate to contact us.
By Michael Lindtner, Associate, Schoenherr