As a general rule, providers of Internet access services must not block, slow down, modify, restrict, interfere with, degrade or discriminate against specific content, applications, services or categories thereof, although the Net Neutrality Regulation also provides for exceptions to this principle. Thus, the enumerated measures may be taken to the extent and for as long as they are necessary to comply with Union or national legislative acts and their implementing measures.
Legal basis: § 81 (1a) UrhG
In the field of copyright law § 81 (1a) of the Copyright Act (UrhG) contains a special provision according to which providers of Internet access services can also be obliged to cease and desist from providing access to structurally infringing websites, provided they have previously been duly warned by a rights holder. A structurally infringing website is one on which exclusive rights within the meaning of the Copyright Act (UrhG) are infringed not only in individual cases, but systematically and regularly. This is also the case, for example, if website operators contribute to the mass procurement of illegal reproductions of works by making indexed BitTorrent files available to users to make it easier to find desired titles.
Even if claims for injunctive relief under copyright law are in principle to be decided by ordinary courts, the regulatory authority is responsible for checking whether the implementation of the traffic management measures taken for this purpose in the form of access blocks is compatible with the TSM Regulation. If such traffic management measures are taken by providers of internet access services after a warning has been issued by the rights holders and without a corresponding court decision, it is also necessary to review the existence of the exception regulated in Art. 3(3)(a) of the TSM Regulation.
Legal basis: Consumer Protection Cooperation Act
In the area of consumer protection, the consumer protection cooperation act (VBKG) implementing Regulation (EU) 2017/2394 (Consumer protection cooperation regulation, VBKVO) provides that in order to enforce consumer rights, if no other effective means are left to prevent the risk of serious harm to the collective interests of consumers, various measures may be ordered to block, remove and restrict such content.
The protected consumer rights arise from the directives listed in the Annex to the consumer protection cooperation act. This includes the following legal acts of secondary legislation of the European Union:
- Directive on unfair terms in consumer contracts
- Directive on consumer protection in the indication of the prices
- Directive on certain aspects concerning contracts for the sale of goods
- Directive on electronic commerce
- Directive on the Community code relating to medicinal products for human use
- Directive on privacy and electronic communications
- Directive on the distance marketing of consumer financial services
- Regulation on air passenger rights
- Directive on unfair business-to-consumer commercial practices
- Regulation on the rights of disabled persons and persons with reduced mobility when travelling by air
- Directive on misleading and comparative advertising
- Directive on services in the internal market
- Regulation on rail passengers’ rights and obligations
- Directive on credit agreements for consumers
- Regulation on common rules for the operation of air services in the Community
- Directive on the protection of consumers in respect of certain aspects of timeshare contracts
- Audiovisual Media Services Directive
- Regulation on the rights of passengers when travelling by sea and inland waterway
- Regulation on the rights of passengers in bus and coach transport
- Directive on consumer rights
- Directive on consumer ADR
- Regulation on consumer ODR
- Directive on credit agreements for consumers
- Directive on payment accounts
- Directive on package travel and linked travel arrangements
- Regulation on cross-border portability of online content services
The blocking of websites is also regulated by the Consumer Protection Cooperation Regulation (CPC Regulation (EU) 2017/2394); in Austria, there is also the Consumer Protection Cooperation Act (Verbraucherbehördenkooperationsgesetz - VBKG). In accordance with this, website blocking is possible as a last resort in the event of cross-border and widespread infringements of European consumer protection law in the broader sense. The Telekom-Control Commission (Telekom-Control-Kommission - TKK) is responsible for issuing website blocking orders and can only do so upon request from certain legally authorized authorities.
Pursuant to Art. 7b VBKG, the Telekom-Control Commission can be called upon to order such measures in accordance with Art. 9 (4) (g) VBKVO due to an infringement under the consumer protection corporation act, which the providers of Internet access services, hosting services pursuant to Art. 16 of the E-Commerce Act, caching services, search engines or domain name registrars must take. For this purpose, the authority responsible for enforcing the VBKG may submit an application to the Telekom-Control Commission as the other authority pursuant to Art. 10 Par. 1 lit. b VBKVO. When ordering measures, the Telekom-Control Commission shall take into account the principle of proportionality pursuant to Art. 5 VBKG.
Taking privacy into account, all measures have to be published.
Legal basis: EU Market Surveillance Regulation
Furthermore, the EU Market Surveillance Regulation (EU) 2019/1020 allows blocking of websites. The purpose of this is to create product safety and uniform regulations on conformity and market surveillance for products. Thereby, previous loopholes through which non-EU-compliant third-country goods are placed on the EU market via online platforms without a tangible responsible economic operator in the EU are eliminated. In this context, website blocking is possible as a last resort in accordance with Art. 14 para. 4 lit k sublit i Market Surveillance Regulation in order to "eliminate a serious risk". Specifically, the following measures are envisaged
- to require the removal of content referring to the related products from an online interface or to require the explicit display of a warning to end users when they access an online interface; or
- where a request according to point (i) has not been complied with, to require information society service providers to restrict access to the online interface, including by requesting a relevant third party to implement such measures.