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(1) UPC Telekabel appealed on a point of law to the Supreme Court a decision form a lower court ordering Telekable to block access to an illegal movie streaming website (see below). (2) In support of its appeal, UPC Telekabel submited inter alia that its services could not be considered to be used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29 because it did not have any business relationship with the operators of the website at issue and it was not established that its own customers acted unlawfully. In any event, UPC Telekabel claims that the various blocking measures which may be introduced can all be technically circumvented and that some of them are excessively costly. (3) The Court decided to stay the proceedings and to refer questions to the European Court of...

(1) The defendant maintains an Internet media website where users can upload content if they have an account and are logged in. The general terms and conditions of the website only allow content which does not infringe upon the rights of its authors. The claimant holds the rights to certain photographs which users uploaded to the defendant's website. The right holder sued the defendant for publishing the photographs without consent. (2) The Court ruled that a hosting provider can be sued for injunctive relief only after the claimant has informed him of the infringement. However, this prerequisite is not of formal, but of material character. Therefore, the claimant can bring action against the hosting provider but he will not succeed. The cease and desist letter has to contain specific information about the infringement...

Under certain circumstances the intermediary can be criminally responsible as a coperpertrator. The criminal responsibility of coperpertrators is specified in the Austrian Criminal Code (StGB). The code affirms that persons who knowingly and willingly contribute to a criminal activity (Section 12) can be held criminally responsible. This requires an active contribution which exceeds the safe harbors of the Sections 13 – 17 ECG. See below Regional Criminal Court in Graz

ABGB does not have a central provision concerning liability for intermediaries. According to Section 1295 a person can be held liable for damages caused unlawfully through a fault of his. According to Section 1301 everyone who contributes to the damage either directly or indirectly can be held liable. This includes everyone with a certain obligation to prevent the damage from arising, if they have not done so. This liability presumes that the intermediary knew about the infringement or violated a special obligation to test if the infringement occurred. Therefore an intermediary can be held liable for the infringement of personality rights by a blog post or comments under a newspaper article (Section 1330 ABGB) if the plaintiff has informed him of the infringing content and he has refused to block it.

(1) The plaintiff bought gold on eBay from a seller who had the status of a Power Seller. The Power Seller status is awarded by eBay to sellers who achieve a certain sales volume and who have high ratings. The status therefore improves the credibility of the seller. In this case the seller sold gold which he never delivered. He has been convicted of fraud in 113 similar cases. (2) The Court ruled that eBay was obliged to block the seller who has infringed on eBay's own terms of service. Failing to do so resulted in direct liability for the damage which the buyers, who trusted the credibility of a Power Seller, suffered.