15.04.2021
The Supreme Court recently had to decide (6 Ob 226/19g) whether an "access provider" (for example an operator of a webmail service) is subject to a right to information from third parties. This is made clear by law under Section 18 Paragraph 4 of the ECG only for "host providers" (for example operators of online forums). With regard to host providers, it was and is legally standardized that in the event of the dissemination of defamatory content, third parties have the right to know the name and address of a user who insults them if legal action is otherwise not possible.
In the present case, defamatory claims had been made about a columnist in an email sent to a number of people (among other things, she was described as a "permanently horny chick" and the email had the subject "highly disturbed"). Not everything that is not flattering is automatically an offense, but in this case it was clear: these statements were illegal. The person insulted demanded information from the Internet provider that had provided the email address (which did appear to contain names, but it was not possible to identify the specific sender) about who owned the email address. The Internet provider that had provided the email address and also provided its customers with mailbox storage space in this context refused to provide the information. It took the position that it was not a host provider within the meaning of Section 16 of the ECG, but (only) an access provider within the meaning of Section 13 of the ECG. Because Section 18 Paragraph 4 ECG only obliges host providers, but not access providers, to provide information, the provider is not obliged to provide the information.
The first court classified the Internet provider as a host provider because it provided an email service and also stored the email data. The appeal court overturned this ruling, however, on the grounds that the defendant was only an access provider and that the mere temporary storage of the emails was not sufficient for a different classification, and that the defendant did not have to provide any information.
The plaintiff appealed against this ruling to the Supreme Court (“OGH”). The Supreme Court was of the opinion that the information was owed. The defendant was not a host provider (i.e. not a service provider that stores the information entered by a user), but “only” an access provider. However, an analogous application of the right to information under Section 18 Paragraph 4 of the ECG would be required. There was a gap in the law, it was incomplete, measured against its own intention and the inherent teleology. To give people whose rights were violated by the illegal activities of a third party unknown to them the opportunity to prosecute the violator by providing information under Section 18 Paragraph 4 of the ECG. This right to information was tailored first and foremost to the release of the name and address of those people who published “postings” in a forum. However, it was obvious that the law – measured against its own objective – was full of gaps. The provision of a webmail service is also intended to make the content entered by the user accessible to third parties. This content can lead to violations of law; and even then the injured party must have a right to information, because otherwise there would be a lack of legal protection.
With this ruling, the Supreme Court has closed an unplanned gap. The lawsuit was rightly upheld and the information had to be provided. It should be noted that the right to information was amended when the Hate on the Internet Act (HiNBG) came into force, and now, according to Section 18 Paragraph 4a of the ECG, the locally competent regional court is responsible for non-contentious proceedings and the court fee of €82.00 is extremely low, making legal proceedings even easier.