William Weber, a LowEndTalk member, was raided by Austrian police in 2012 for operating a Tor exit node that was allegedly used to distribute child pornography. While he was not arrested, many of his computers and devices were confiscated. He was later found guilty of supporting the distribution of child pornography through his Tor exit node, though he claims it was unintentional and he was simply supporting free speech and anonymity. He was given a 5 year probation sentence but left Austria shortly after. Though some articles portray him negatively, it is debatable whether he intentionally supported child pornography distribution or simply operated in the legal grey area of Tor exit nodes.
From the article…
Yes, as they had to give me the minimum sentence. By law they were right as the law only protected registered companies, unlike in Germany for example. The law was changed a few weeks later to include private persons and sole traders as protected lsps, not just companies, but they had to convict me. No choice in the end.
So, ISPs in Austria actually have legal protection from liability here, rightfully so, and also rightfully so, that protection was extended to private persons as well. A rare story of a legal system apparently working well, with regard to the marriage of privacy and technology.
The law was changed a few weeks later to include private persons and sole traders as protected lsps, not just companies, but they had to convict me. No choice in the end.
I am not sure I would consider this “working well”. It is the job of the court to determine if and how to apply law. Laws are never perfect and should be applied per intention, and not word-for-word. If the latter would even be possible, we wouldn’t need judges in the first place, because it would be a “simple” decision tree. But it’s not. And we have judges and the court processes for a reason.
If the law was amended a few weeks later, it shows, IMO, that the intention of the law was different than what was written down. Therefore the judge should have ruled that way by acknowledging that while the law does not exempt private individuals, its intention shows that it clearly should (simply because it doesn’t make much sense otherwise).
In other words: if the system really worked well, the judge would have sentenced (or rather not sentenced) within the intention of the law, and not within the strict writing.
(Worst case is that something like that gets escalated to the highest court who then either also accepts or overrules it.)
Yep given this is Austrian jurisprudence they should be able to apply Radbruch. Could it be overturned on appeal? Sure, but the judge also wouldn’t look stupid on appeal. German courts are using it in instances like conjuring a Romeo+Juliet exception out of thin air (in the “sex on your 14th birthday with your SO who is still 13” kind of sense), directly contradicting written law, saying “yep they overlooked that corner case”. Law didn’t even get updated as application of the formula is so uncontroversial.
In particular, this letter-of-law interpretation ignores equality before the law – that between natural and juridical persons. You need a proper reason to do such a thing. Quoth Radbruch:
Where there is not even an attempt at justice, where equality, which forms the core of justice, is deliberately betrayed in the laying down of positive law, then the statute is not even merely ‘flawed law’—rather, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.
