ECJ Strikes down Austrian Comm Platform Regulation

Jan 5, 2024 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has ruled that the centrepiece of Austria’s law against hate speech on the Internet, the Communications Platforms Act (Kommunikationsplattformengesetz, hereinafter KoPl-G), is contrary to EU law. Meta, Google, and Tiktok were successful in having it overturned.

Ever since 2021, the KoPl-G requires operators of large communication platforms to introduce a reporting and verification procedure for illegal content and to report annually or every six months on how the reports are handled.

Meta (Facebook), Google, and TikTok (all based in Ireland) subsequently defended themselves against the findings of the competent authority, KommAustria, that they were subject to the KoPl-G. In their view, the KoPl-G violates the E-Commerce Directive (Directive 2000/31/EC). Among other things, this directive prohibits member states from imposing restrictions on information society services from other member states. Exceptions are made in certain cases for measures ‘concerning a specific information society service’ (Article 3(4) of the E-Commerce Directive).

The ECJ has now ruled that the KoPl-G cannot be based on this exception and therefore violates the E-Commerce Directive and the freedom to provide services. Firstly, information services must be individualised and not described according to general criteria. In addition, no general, abstract measures may be taken that apply indiscriminately to all providers of covered platforms. This would be contrary to the principle of supervision in the home Member State under Art. 3(1) of the E-Commerce Directive.

The same obligations and measures are foreseen in the Digital Services Act (DSA), which has entered into force in 2022 and must be implemented by 17 February 2024. The necessary accompanying measures are currently being introduced in Austria.

ECJ C-376/22 (9 November 2023)