‘ Users of online forums in Austria will have to provide operators with their true identities or risk fines that could run into the millions. -‘
‘Those in Austria wishing to post a comment on the internet in the future will no longer be able to do so anonymously. According to the government’s new draft law on “Diligence and Responsibility on the Web,” users will have to provide their first name, last name and address to platform operators. In the event of an investigation, operators would then have to supply that information to government agencies or, in some cases, to private persons in cases of insult or defamation.
Public posts could still appear under a pseudonym. “The legal requirements that are valid in the analog world must also be valid in the digital world,” Media Minister Gernot Blümel, of the center-right Austrian People’s Party (ÖVP), said at a press conference. “That is why there is now an abundance of resolutions to make the correction.” The so-called “digital anonymity ban,” he said, is an additional step in that direction. The plan calls for the law to go into force in 2020.
The law would apply to platforms that either: have more than 100,000 registered users; earn more than 500,000 euros in annual revenues; or receive government press subsidies of more than 50,000 euros. According to the draft law, the platforms would also have a responsibility for determining if the ID information provided by users is accurate. How they choose to do so is left up to the platforms themselves, though the annotation to the draft law mentions the use of dual-factor authentication by way of the user’s mobile number. Since the beginning of the year, all SIM cards in Austria have had to be registered with a photo ID. In addition, web platforms would be required to appoint a liaison in Austria who would be responsible for making information about platform users available if it becomes necessary. If this person does not ensure that the regulation is followed, he or she could be punished with a fine of up to 100,000 euros. The law provides for significant monetary penalties if platforms don’t conform to the law. Depending on the severity of the violation, fines could reach as high as 500,000 euros – and could rise to a million euros if the offense recurs.
The Austrian Communications Authority, more commonly known as KommAustria, would be responsible for enforcement of the law, which also applies to forums such as those operated by STANDARD. E-commerce platforms are exempt, as are platforms that earn no revenues either from their content or from advertising. Right-Wing Site Exempted The exemption, however, also extends to sites that have often been criticized in the past for allowing hate posts to remain online, such as the platform unzensuriert.at, which is linked to the Freedom Party of Austria (FPÖ), the right-wing populist party that is the ÖVP’s junior coalition partner in the current government. Blümel justified the exemption by saying it was designed to reduce the potential burden on smaller platforms and start-ups that likely would be unable to afford compliance. In an interview with STANDARD, IT lawyer Markus Dörfler expressed criticism of the fact that in the annotation attached to the law, it is frequently noted that the same principles that apply to the real world must also apply to the digital world. “In the real world, I don’t demand to see an ID as a precautionary measure,” he told STANDARD. He views the law as a step toward the establishment of an infrastructure of censorship. Dörfler believes the law could represent an incursion on the freedom of expression as codified in the European Convention on Human Rights (ECHR), according to which any limitations on the freedom of expression can only be made if they are “necessary in a democratic society.” In addition, Dörfler believes it unlikely that most foreign social media platforms will appoint a liaison in Austria, and he wonders how the law will be applied to them. He cites Facebook as an example, but also unknown platforms situated in places like Asia. “No Chinese network is going to start checking the identities of its users in order to comply with the law,” Dörfler said.
It is an assessment that tech law expert Nikolaus Forgó agreed with in an interview with STANDARD. Outside the Country “Plus, the law will penalize the wrong platforms anyway,” Dörfler said – and not platforms that disseminate hate and animosity. Sites like Alpen-Donau.info, a neo-Nazi site that has since been discontinued, would simply relocate outside the country, he said. It is also unclear, he added, whether the law is consistent with the 2016 ruling by the European Court of Justice on data retention. In that ruling, the court wrote that the “general and indiscriminate retention of data” is not allowed. Plus, it represents an incursion on the right to privacy and the protection of personal data. “The draft law is a frontal attack on the STANDARD and the limited number of similar Austrian websites with discussion forums,” said Forgó. “This path won’t even come close to achieving the goal of internet discipline.” Instead, Forgó said, the law will lead to high costs – for example to pay the liaison, who must be available at all times – which would damage Austria’s “already weak” digital infrastructure.
There are also data protection concerns to be considered, such as the fact that platform operators would suddenly be in possession of a huge amount of data that they don’t really want. “Plus, it represents a huge hurdle for new forums to clear. I can’t imagine that a forum for Alcoholics Anonymous could successfully be operated any longer.” Because many posts allow for a range of possible interpretations, the government would be able to request information in a wide variety of cases.
“There is potential here for a gigantic surveillance machinery for monitoring political discourse in Austria,” Forgó said. European Commission Approval Tech law expert Lukas Feiler from the law firm Baker McKenzie furthermore believes that the draft law is a violation of the EU e-commerce directive. Feiler recently told STANDARD that service providers on the web only have to obey the laws of the country in which they are situated. As such, Austria may not impose laws that are stricter than those in an operator’s country of origin. The government is aware of the potential problem and wrote in the annotation to the law that the European Commission would have to be notified of the law in advance to give the EU executive a chance to examine the text. In certain situations, the annotation notes, the Commission allows exceptions – such as when the measure in question is necessary to maintain public order. Feiler said that such exceptions are only applicable in cases of punishable offenses and not to civil suits for things like defamation, a transgression that is explicitly mentioned in the draft law. Even if the law was only applied to punishable offenses, the draft law still would not be permissible because exceptions can only be made on a case-by-case basis – focused on a single platform operator with a specific justification. And such a platform isn’t allowed in Austria anyway.
“The e-commerce directive protects the freedom to provide services for online platforms,” Feiler said. He believes that the Commission would not allow the Austrian government’s draft law due to existing EU law. Initially, the Austrian government had intended to push through a package of regulations modeled on the German Network Enforcement Act, but those plans were apparently abandoned during the development stage. The German law requires platform operators to delete postings within an extremely short amount of time. The law was granted an exception – it calls for social networks to have an officer in Germany. That, though, was allowed because the Network Enforcement Act is a reactive tool to address violations after they occur, in contrast to the Austrian draft law which allows for proactive, preventative measures. Criticism from Opposition and Web Activists The digital rights activists from Epicenter Works refer to the law as a “compulsory digital ID” and see it as a “massive overreach on data protection.” The legitimate goal of curtailing hate on the web cannot go hand-in-hand with the erosion of fundamental rights, the organization says. Criticism also came from the former Green Party politician Sigi Maurer, whose fight against sexist posts was cited by the government as proof that the law was needed.
“The government abused my case to propose this censorship law,” Maurer wrote in a tweet last week. “Not in my name.” Mario Lindner, diversity spokesman for the center-left Social Democratic Party of Austria (SPÖ), said the draft law overshoots its target. “What the government has presented is not a solution to the challenges that are facing us in the digital space.” Anonymity, he said, hasn’t been the central problem for some time, noting that hate posts are regularly written by people using their real names. “In the best case, it was poorly considered, in the worst, it is an attack on the free internet,” Claudia Gamon said of the draft law. Gamon the lead candidate in the upcoming European elections for the NEOS party, an acronym which stands for “The New Austria and Liberal Forum.” Gamon also believes that the regulation would do nothing to reduce the number of hate posts.
Stephanie Cox from the environmental party JETZT said the law casts suspicion on all web users. The association Internet Service Providers Austria (ISPA) is also critical of the government’s draft law. “Such an ‘ID requirement’ on the internet has nothing to do with conditions in the real world, as the law’s proponents claim,” the organization said in a statement. The group added in the statement that it has concerns about data protection and freedom of expression.’