[EthanV2]

Does this mean that Austrian ISPs can be prosecuted if their customers use their connections to transmit "content of an illegal nature"? Surely the ISP knows that some of their customers could use their services for illicit purposes, meaning they're "guilty of complicity" themselves.

[esbranson]

It means absolutely nothing. Austria does not follow the common law doctrine of stare decisis, where each case is bound to follow whatever reasoning is used by a superior court. (Note that "constant jurisprudence" is completely different and is not really binding, since higher court chambers do not have stable composition and as such their reasoning may not be consistent.)

A different court is allowed to use completely contrary reasoning and interpretation of "enables or facilitates" ("ermöglicht oder erleichtert") and "intent" ("Vorsatz") in § 12 StGB. The more money you have, the more likely that is. Also keep in mind that sometimes juries composed of short-term politically-appointed local politicians ("lay judges") are used, so that also adds to the complexity.

Austria's women and landscapes are beautiful. Austria's legal system, not so much.

[rbehrends]

> A different court is allowed to use completely contrary reasoning and interpretation of "enables or facilitates" ("ermöglicht oder erleichtert") and "intent" ("Vorsatz") in § 12 StGB.

In general, lower courts are still going to follow the superior courts, or they will simply be overturned on appeal. And if a judgement is reversed by an appeals court, the lower court is generally bound by the legal findings of the appeals court (e.g. §511 ZPO [1]), so it's not as though they can evade review. In practice, there is actually relatively little difference between common law and civil law jurisdiction these days with respect to precedent.

Not to mention that in this case this is the judgement of a regional court, which could not possibly be binding outside its region even in a common law country.

> Also keep in mind that sometimes juries composed of short-term politically-appointed local politicians ("lay judges") are used, so that also adds to the complexity.

Lay justices and jurors in Austria are selected randomly from the electoral register. See §5 GschwG [2]. This is different from the procedure in other countries, where lay judges are commonly volunteers.

[1] http://www.jusline.at/511_ZPO.html

[2] http://www.jusline.at/5._Verfahren_der_Gemeinden_GschG.html

[esbranson]

> In general, lower courts are still going to follow the superior courts

That's true. Until its not.

> or they will simply be overturned on appeal

Unless its an entirely different chamber. Is any given chamber even static in composition, or is it dynamic? I admit I don't know (i.e. I have no clue) how appellate panels are chosen. But if even a given appellate chamber is never static, then it may or may not be overturned, depending on that chamber's judges' and whether their opinions are different from a previous composition of the chamber.

> if a judgement is reversed by an appeals court

That's a very big "if" given that there is no stare decisis and a possibly dynamic appellate court composition.

> there is actually relatively little difference

Stare decisis forms after a single opinion. "Constant jurisprudence" forms after ... it forms after judges say it forms. Or something.

> could not possibly be binding outside its region even in a common law country

In California and New York at least (thats like 60 million people) there is no regional appeals court. The appeals court forms a single court, and its opinions are binding throughout the state. California and New York are themselves sovereign states, not regions. (Which is why you can, e.g., commit treason against a state. They also have their own militaries, e.g., "state defense forces", separate from the so-called National Guard.)

> Lay justices and jurors in Austria are selected randomly from the electoral register.

I did not know that. Now I'm glad I brought it up. Thank you. Sweden and Germany could learn something there IMO.

[pbhjpbhj]

That's interesting about Austria not using stare decisis. How does that mesh with them being part of Europe. European laws which have been ratified would surely require them to rely on other European decisions? (Art. 177 EEC I think?)

Art.6 ECHR - right to fair trial - appears to contradict the idea of allowing contrary reasoning to be used arbitrarily. Political appointees coming to a different decision would seem to require partiality too.

Interesting.

[the_mitsuhiko]

Common law is only being used in the United Kingdom: http://en.wikipedia.org/wiki/Common_law#mediaviewer/File:Leg...

[the_mitsuhiko]

> Austria's women and landscapes are beautiful. Austria's legal system, not so much.

I think our legal system is pretty good to be honest. (Then again, I also pretty much agree with the fact that TOR exit nodes are not compatible with Austrian law.)

[esbranson]

Lets put it this way: If you took American judges and American lawyers and American laws and used Austria's jurisprudence, would the legal system be better or worse than America's? Without juries and without doctrine like stare decisis, IMO, way worse.

Its just so sad to see what has happened to Austria's legal system. Austrians lost their right to a jury trial, which AFAIK happened circa 1933-1934 (this should give you a clue as to who benefited/benefits), and Austrians have absolutely no clue they even had it. I think Germany lost their right to a jury trial around 1924. That really wasn't that long ago, given that the jury trial is a Germanic custom. (I mean, its all very POV. Austro-German politicans call it "reform"; I call it "fascism".) Stare decisis is more of a sui generis and extra-statutory mechanism developed in England, so that facet is obviously less surprising.

[the_mitsuhiko]

> Austrians have absolutely no clue they even had it

Citation needed. From personal experience Austrians are very much in support of not having American style juries which are seen in a very bad light over here.

> Lets put it this way: If you took American judges and American lawyers and American laws and used Austria's jurisprudence, would the legal system be better or worse than America's?

Why would you mix things together that do not go together? Personally I would much rather have to deal with an Austrian court than an American one.

[esbranson]

> Citation needed.

It is hard to prove a negative or prove something has not happened. I'll leave that as an exercise to the reader.

> American style juries which are seen in a very bad light over here

That neither supports nor refutes my argument that Austrians have no clue about Austrian style juries.

> Personally I would much rather have to deal with an Austrian court than an American one.

I would much rather deal with an American court with Austrian judges.

> Why would you mix things together that do not go together?

Because I possess free will. And I am capable of performing thought experiments.

[the_mitsuhiko]

> That neither supports nor refutes my argument that Austrian's have no clue about Austrian style juries.

It's very hard to refute that claim because you did not provide any sources for yours either. I would not know how to judge how Austrians see courts besides my limited exposure to the few law related classes I took and observing one of our most popular judges for a day and that obviously is personal bias.

> I would much rather deal with an American court with Austrian judges.

I can only assume Austrian courts did you something wrong or a person you know. Austrian courts see so little public exposure that you literally have to pick individual cases together by force to get a (skewed) view of the world. For the most part court cases in Austria are ridiculously boring.

[DoubleMalt]

How do you argue that running a TOR exit node is not compatible with Austrian law while running an ISP is?

[kriro]

AFAIK, in Germany (I know the article is about Austria but I'd guess their laws are similar) you can be held responsible if something illegal is conducted through your network (usually open WLANs). It's called "Störerhaftung" and is pretty crazy because it essentially means every grandmother has to become a sysadmin of sorts. This is used a lot in film download trials etc.

ISPs are explicitly excluded from this and not held responsible.

[rbehrends]

A major difference is that "Störerhaftung" is matter of civil liability only, not criminal liability. Moreover, "Störerhaftung" entitles the injured party only to injunctive relief, not to damages (unless, of course, you signed a cease and desist agreement, in which case contractual penalties may apply). "Haftung" (= liability) is thus a bit of a misnomer.

Moreover, the current German government is considering legislation to eliminate "Störerhaftung" with respect to unprotected WLAN access.

As for:

> ISPs are explicitly excluded from this and not held responsible.

This is not accurate. The "provider privilege" that ISPs enjoy in Germany only immunizes them against claims involving damages; injured parties can and do request injunctions based on "Störerhaftung" (whether such injunctive relief is granted is another story, especially when the desired injunction is ineffective). In fact, there have been cases where providers have been held to higher standards than private individuals because of their greater expertise (e.g., LG Hamburg 310 O 433/10 [1]). The details are still far from settled law, though.

[1] http://openjur.de/u/82969.html

[shabble]

> ISPs are explicitly excluded from this and not held responsible.

Time to form a shell company in the ISP business to host your Tor servers, then?

Or are there specific requirements that would prevent such a plan (recordkeeping seems like the obvious one)

[higherpurpose]

There was a story about a Retroshare guy from Germany being prosecuted in a similar case, but the Court cleared him.

[phillc73]

I have a VPS with an Austrian ISP. Their Ts&Cs already state the following are specifically not allowed:

Tor/i2p/similar exit servers (bridge, entry and middle are fine until further notice)

Last update was Jan 17th, 2014, but this clause has been included for as long as I have been a customer, which is a couple of years. So, I would say at least some Austrian ISPs are aware of the risk.

[devicenull]

It's much more likely that they just don't want to deal with the endless stream of DMCA notices that tor exit servers tend to attract.

[phillc73]

Same Ts&Cs have country specific sections (they have server options in multiple countries) and for Austria also says:

DMCA is mainly ignored due to being invalid, EUCD is to be followed.

[jdong]

Coincidentally the very person who was sentenced here operates the hosting company you're with (edis.at)

[teamhappy]

For sure. At least in theory. That's always been true though. I don't think Austrian ISPs worry about it to much because precedents don't influence court decisions as much as they do in the US.

[wfjackson]

Perhaps the logic of the court is that the ISPs do no provide essentially anonymous access. ISPs can and do turn over customer info when ordered by courts/law enforcement.

[SnotJockey]

But the customer info turned over is not necessarily the guilty party either. If you have free wifi in your cafe now you're responsible for anything illegal your clients do?

It's a bad judgement on all counts.

[pbhjpbhj]

Do you really consider it a bad judgement, or would you rather say it's a bad law?