Austria: New verification requirements for website and platform operators

The decision

The Court held that persons degraded by a "shitstorm" are entitled to compensation. A "shitstorm" is defined as a large number of persons participating in the writing or sharing of derogatory texts in a virtual environment. To claim that psychological damages were suffered, the victim of a shitstorm does not have to identify and prove the specific "source" of each derogatory statement. It is sufficient to prove that the victim was the subject of a shitstorm and that at least one specific offender unlawfully and culpably participated in it. Since the cause of individual consequences are impossible to determine and the damage suffered is therefore indivisible, the victim can demand compensation for the entire damage by way of joint and several liability. This means that anyone who participates in a shitstorm must expect to pay the total damages to the victim in advance and then to undergo the effort of dividing the compensation among the other offenders.

Possible implications under the DSA

In principle, website and platform providers who fall within the scope of the DSA must remove or block access to unlawful content without delay as soon as they become aware of it. The providers are not obliged to monitor the information they transmit or to store or actively search for circumstances indicating illegal activities.

However, if a user complaint indicates a shitstorm, providers must consider that the Court understands a shitstorm as a bundle of postings that are unlawful in their entirety and detrimental to the victim. The provider will have to locate and delete those texts or (re)postings that, following the legal opinion of the Court, have a joint effect and mutually influence each other as a (substantial) part of the shitstorm.

Need for action

• The provider must be able to identify those contents that cause an unlawful, mutual influence with the posts reported by the user, and possibly delete them.
• If the provider fails to do so, it may not sufficiently address the shitstorm, not provide the necessary remedies and not comply with the obligations under the DSA.
• The use of AI (Large Language Models) may be useful to identify jointly effective and mutually influencing unlawful postings.
• Information documents to users owed under the DSA must be adapted to reflect these processes.