Digital content and IP issues
Are websites and any other digital content required to display certain legal notices or other information in your jurisdiction?
According to the Media Act, the Company Law Act and the E-commerce Act, all websites and all other digital content that is available for a large group of persons must contain an imprint containing, among other things, the name and contact details of the respective entity or natural person publishing the content.
Liability for content
What rules govern liability for online or other digital content that is defamatory or infringes another party’s IP rights?
The E-commerce Act contains the core provisions on liability for online content. According to Section 18, the information society service provider is not obliged to monitor the content hosted, transferred or published. Thus, the service provider (eg, website provider) is generally not liable for digital content posted on its website that is defamatory or infringes another party's IP rights. However, the service provider is obliged to delete or block defamatory content or content that infringes another party's IP rights as soon as the provider becomes aware of such a situation.
How can liability be excluded or limited?
The E-commerce Act sets in place various liability privileges for internet service providers.
A host provider is not liable for the content of users if it has no knowledge of illegal activity and acts immediately on knowledge by removing or disabling access to the content.
Search engines and access providers are not held liable for the information transmitted if they have not caused, manipulated or chosen the transmission of the information or chosen its recipients.
Further, responsibility is excluded for caching when the service provider does not:
- manipulate the information;
- use industry standards for updating and gathering information; and
- immediately delete or block access to stored data after becoming aware of the fact that the information has been blocked or deleted from the initial source or the authorities or a court have ordered the deleting or blocking of the information.
The service provider is not responsible for linking or referring to third-party content when it does not know about the infringement and when it is not obvious. Further, the service must delete the link or reference when becoming aware of the infringement.
Finally, according to general Austrian civil laws and consumer protection provisions, it is possible to limit liability for damages to a certain degree. However, particularly liability for damages caused by gross negligence or wilful misconduct cannot be excluded or limited. The same applies to liability for violation of core obligations.
Which parties can be held liable for defamatory or infringing content? Can contingent liability be extended to internet service providers (ISPs)?
As a general rule, only the concrete person publishing the defamatory content or infringing a third party's rights can be held liable. Thus, in their role as host or access providers, internet service providers enjoy several liability privileges and can be made liable only in certain scenarios (especially if they have concrete knowledge about the defamatory or infringing content). However, this does not exempt the access provider from being a target for cease-and-desist obligations. The access provider may also be forced to implement filter software to avoid future infringements.
Recently, the Vienna Commercial Court decided that the liability privileges require a neutral, merely technical role for the host provider (eg, providing connections and sorting data). As soon as the service provider filters the content, generates additional links, determinates users’ surf behaviours and creates customised surf suggestions, the provider cannot invoke the privilege as being a mere host provider. If this first-instance court decision is upheld it might have a significant effect on a number of platforms (eg, YouTube and Facebook) which would then have to check all content for legal violations in advance, as the judgment is not limited to copyright infringements.
What rules and procedures govern content takedowns? Can ISPs remove defamatory or infringing content without permission?
To avoid liability for defamatory or infringing content, an internet service provider should delete or deny access to impermissible content once it becomes aware of the infringement. There is no general obligation to monitor or screen content, provided that the service provider is a mere host provider. However, monitoring is required when there have already been infringements and the balancing of rights of the potential claimant and the hosting provider dictates that monitoring is necessary.
What rules, restrictions and procedures govern the licensing of domain names?
In general, there are no specific rules, restrictions or statutory procedures governing the licensing of domain names. However, the general rules on designation under the Competition Act and trademark laws must be considered when licensing domain names.
How are domain name disputes resolved in your jurisdiction?
Generally, best practice is to send a warning letter to the opposite party and to aim to settle the matter amicably before initiating court proceedings. There are no domestic alternative dispute resolution centres for domain name disputes. Domain disputes are often based on the Competition Act and trademark laws and are settled in court proceedings.
IP protection measures
What special measures and safeguards should rights holders consider in protecting their online/digital content?
The following can be considered when protecting online and digital content:
- Online and digital content usually contains a clear copyright notice and clear indication that it cannot use the contents without permission of the rights holder.
- Online and digital content can be registered as trademark or design in order to prevent copycats.
- A stringent enforcement strategy and monitoring of infringements is essential.