this post was submitted on 23 Jul 2023
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From the article...
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.
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:
Do they not have Jury Nullification over there?
Can't have jury nullification if you don't have juries.