Genau: Somm hatte keinen Vorsatz..........

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Dass ich nicht lache:

   Bavaria v. Felix Somm: The Pornography Conviction of the Former
   CompuServe manager
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   Case Documents at: http://www.digital-law.net/papers/index.html
   
   by Dr. Gunnar Bender
   
   M
nster / Germany
   Reference:
   IJCLP Web-Doc 14-1-1998
   [INLINE] Download Article
   in RTF-Format
   
   1. Introduction
   
   Internet jurisdiction - a term in bad taste when examined from a
   German perspective. For example, a court in Hamburg recently ruled
   that the creator of a Web page is legally liable for the content on
   any page linked by his or her own page (1). It's an uncanny echo of
   the brouhaha more than a year ago surrounding the former vice
   chairwoman of Germany's Party for Democratic Socialism, Angela
   Marquardt, whose site linked to the leftist publication Radikal (2).
   That trial eventually fell apart on a technicality, leaving the door
   open for similar rulings.
   The conviction of the former CompuServe Germany President Felix Somm
   is such a ruling. In Munich, Judge Hubbert gave the Internet Service
   Provider's (ISP's) managing director a two-year suspended sentence and
   fined him 100,000 marks ($56,000) for failing to block Internet access
   to child pornography. Even the prosecutors in the case in the end
   called for Somm's acquittal. This ruling is even harder to believe
   upon closer examination of the factual background of the case.
   [INLINE] Par. 1
   
   2. Facts of the Case
   In November 1995, the Bavarian criminal investigation authorities
   notified Felix Somm of five newsgroups with child-pornography content
   on the servers of CompuServe Inc., and handed over a list containing
   282 newsgroups, which was supposed to show the existence of sex on the
   Internet. The accused passed said information on to the parent company
   CompuServe Inc., which forthwith deleted said information on its news
   servers: the child pornography newsgroups remained permanently
   blocked. The newsgroups containing "soft" sexual content were
   re-opened after CompuServe Inc. and CompuServe GmbH had provided their
   members with corresponding "child safeguard software" enabling parents
   to block such content. In the period following, the investigation
   authorities, in their daily checks, retreived individual news articles
   with hard-pornographic contents from the news servers of CompuServe
   Inc. Furthermore, the authorities retrieved two index-listed computer
   games through the network node computer of the German subsidiary,
   CompuServe GmbH. Supposingly, the retrieval of the specific newsgroups
   was possible because the blocking measures ordered by CompuServe Inc.
   were either not successful in whole, or were avoided by those creators
   of the criminal content.
   [INLINE] Par. 2
   
   3. Judgement: Criminal Conviction
   
   Mr Somm was sentenced to two years' imprisonment for wilful
   distribution of pornographic content pursuant to sect. 184 para. 3 of
   the German Penal Code. The sentence is suspended on probation for
   three years against the payment of DM 100.000. In his decision, the
   judge stated: "Even on the Internet there can be no law-free zones."
   Looking at this statement by the judge, one understands why the
   defence stated that the Somm decision made Internet service providers
   into scapegoats, and made no constructive contribution toward
   eliminating the dissemination of illegal material via the Internet.
   
   The reasons for the judgement allege that CompuServe Inc. had wilfully
   refrained from deleting child-pornography data for the purpose of
   making profit. Furthermore it alleges that Felix Somm had knowledge of
   such data and had deliberately promoted its dissemination in his
   capacity as a managing director of CompuServe GmbH. He thereby was
   pursuing his own economic interests. This was documented by the fact
   in his view that the GmbH had been entitled to receive a percentage of
   the sales at issue. For this reason, the offence of a wilful
   dissemination of pornographic works had to be assumed, by Somm in
   complicity with employees of CompuServe Inc.
   It should be noted that the precondition for aiding/abetting and
   complicity were implied by Judge Hubbert without any evidence being
   presented. The fact that Mr. Somm and the employees of the American
   CompuServe Inc. had knowledge of the criminal contents was simply
   implied, without either any evidence or investigation of the motions
   filed by the defence for the taking of such evidence. The judgement of
   the court was all the more surprising, as the judge did not give any
   earlier hint of a conviction. The oral announcement of the judgement
   made clear that the judge did not understand the information about the
   technical features of the Internet. Prosecutors concluded appropriate
   blocking technology was not available in 1996, but Judge Hubbert
   ignored their motion for dismissal. The defence as well as the
   prosecutor filed an appeal against the judgement of the Local Court.
   [INLINE] Par. 3
   
   4. TDG Interpretation in Judgement
   The Judge reviewed issues associated with TDG [German
   Telecommunication Services Law (3)]. Under S.5(3) TDG any criminal
   liability of the service provider is excluded. The judge pointed out
   that S.5(3) TDG was not applicable. S.5(3) TDG referred only to
   Internet content but not to content stored by the parent company.
   Thus, not S.5(3) but S.5(2) TDG was applicable. Under S.5(2) TDG,
   criminal liability of the service provider is allowed if:
     * the criminality of the content is known; and
     * the dissemination of the content had not been stopped; even though
     * the technical facilities are feasible, and its implementation
       reasonable.
       
   The Judge - giving reasons for his opinion - took the same view as the
   Federal Council did during the legislation process. He assumed that,
   in general, it should be "technically feasible and reasonable" to
   prevent the use of criminal content, which is kept in readiness.
   Another result will be conceivable only in very exceptional cases
   indeed. Moreover, he pointed out that all news groups are arranged
   hierarchically, i.e. alphabetically. Accordingly, it was in his view
   easy to determine which news groups were likely to be characterised by
   criminal content.
   [INLINE] Par. 4
   
   5. Duty to Comply
   The judge pointed out that, under the German Penal Code, one could not
   rely on a duty to comply with instructions that have been given
   whenever a crime was being committed. This had become particularly
   obvious in the various cases relating to GDR soldiers on guard duty
   along the Wall who had shot those trying to flee: these soldiers had
   been precluded from relying on the strongest form of duty to comply
   with instructions that have been given, namely military orders.
   [INLINE] Par. 5
   
   6. State Prosecutor's Argument
   
   In contradiction, the state prosecutor petitioned the Court to acquit
   the Defendant. His reasons for doing so were: he took the view, as did
   the judge, that S.5(3) was not applicable, since the parent CompuServe
   Inc. was a service provider for newsgroups. This is because it
   operates newsgroups itself, and it was economically and contractually
   interconnected to its German subsidiary CompuServe GmbH.
   
   As I have pointed out above, applicability of S.5(2) TDG is
   conditional on: [i] knowledge of criminality of content, [ii] on the
   technical feasibility of prevention, and [iii] on that prevention
   being reasonably acceptable. The prosecutor found that the trial had
   shown that, in the case at issue, these preconditions were not met.
   
   [i] According to the prosecutor's reading of the law, knowledge within
   the meaning of S.5(2) TDG requires positive knowledge, conditional
   intent [dolus eventualis] being insufficient. Legislation unmistakably
   supports this point of view. It was obviously not the intention of the
   German legislators to consider knowledge about the distribution of
   punishable contents via the Internet sufficient.
   
   [ii] Concerning technical feasibility, the prosecutor pointed out that
   the prevention of distribution was not technical feasible. A fire wall
   at the network node could not have been implemented because of the
   x.25 protocol, according to the expert opinion. At the time, it was
   generally impossible to install a parallel computing center.
   According to the evidence of the prosecutions, the accused had not
   even had knowledge of criminal content; the Defendant was never
   specifically told that the games or the newsgroups at issue were
   available within the forums. In order to apply S.5(1) TDG for the
   games, the relevant contents would have to be proprietary. In this
   context, the prosecutor pointed out that those were third-party
   contents, even in the USA. Accordingly, the prosecutor posed the
   question: would the accused have been required to know those games
   were being played on US forums? Rather, could the Defendant not rely
   on the fact that there were ISP Agreements according to which any ISP
   had to observe all applicable laws, and that those laws would be
   actually observed?
   [INLINE] Par. 6
   
   7. What Next?
   
   But the story is not over yet. The defence may file [i] an appeal or
   [ii] an appeal in law against the judgement. The appeal [i] entails
   that the taking of evidence is completely restarted, whereas the
   appeal in law [ii] examines the judgement only with regard to errors
   in jurisdiction. The defence team suggests to file an appeal in view
   of the facts implied by Judge Hubbert, as well as the massive
   violation of his duty to investigate the matter. In such a case the
   proceedings will be decided in the next instance by a small criminal
   division, consisting of one professional judge and two lay judges.
   
   Above all, the judgement of the Local Court in Munich is certainly
   based on the lacking in the individual performance of the competent
   judge. It expresses:
   a) his technical ignorance;
       
   b) a violation of the principles of criminal law;
       
   c) a violation of his procedural duty to investigate the matter,
       
   d) and it contradicts the actual findings at trial.
       
   At trial, a wilful action of employees of the American CompuServe Inc.
   and a wilful criminal conduct of Felix Somm was neither found nor
   seriously investigated. The judge strongly violated his duty to
   investigate the matter and insofar also ignored the taking of the
   evidence filed by the defence, e.g. the missing intent of the accused
   and the employees of CompuServe Inc. or the missing facilities for
   avoiding a reappearance of blocked newsgroups. For all these reasons,
   other Internet providers in a similar position may assume that the
   judgement may not simply be generalised and that it will be reversed.
   [INLINE] Par. 7
   
   8. Generalised Application of S.5(3) and S.5(2) TDG
   In addition to specific case characteristics, the judgement of the
   Local Court in Munich, as well as the final motions of the Prosecutor,
   contain potential risks which may of course be generalised. Any
   internationally active Internet provider in Germany must take them
   into account. Said potential risks refer to the delimitation of
   S.5(3) TDG against S.5(2) TDG. The prosecution as well as the Local
   Court assumed owing to "commercial connections" between CompuServe
   GmbH and CompuServe Inc. that the GmbH did not merely provide access
   in terms of S.5(3) TDG. Until the judgement is reversed, attempts may
   be taken at achieving a clarification of the Teleservices Act on a
   national level of legislation. However, this will be difficult since
   the evaluation of the Teleservices Act [TDG (4)] is not scheduled
   until the coming year.
   [INLINE] Par. 8
   
   9. Conclusion: A Pan-European Self-Regulatory Solution?
   
   In view of the difficulty in quickly amending the Teleservices Act at
   the national level, it might be sensible to make an attempt at
   European level. Actually, these attempts might be more successful as
   the European Commission has been pushing countries to adopt an
   international charter, setting out procedures for addressing legal and
   technical questions affecting the Internet and other electronic
   networks (5). The Commission has promised to propose EU legislation
   this year on the liability of on-line service providers for content
   carried over their networks, in areas such as obscenity, defamation,
   privacy and misleading advertising. But the EU so far has promoted
   industry self-regulation and filtering technology as the best way to
   control Internet content that is illegal or harmful to children. EU
   telecommunications ministers agreed earlier this year to fund a
   four-year action plan, to cover initiatives such as a European network
   of hot lines to allow users to report illegal material.
   The conviction of Felix Somm has certainly been a "wake up call" for
   Europe's Internet industry, which explains the recent meetings in
   response to the EU initiative (6), which requests the Internet
   services industry to implement measures such as codes of conduct and
   telephone hotlines to deter misuse of the Internet. In conclusion, it
   must be noted that the "law-free zones" on the Internet cannot be
   filled by a ruling like this, but need a new self-regulatory approach.
   Par. 9
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   Notes
   1 http://www.online-recht.de/vorent.html?LGHamburg980512
   2 http://www.online-recht.de/vorent.html?AGBerlin-Tiergarten970630
   3 http://www.iid.de/iukdg/iukdge.html#a1
   4 http://www.iid.de/iukdg/iukdge.html#a1
   5 http://www.ispo.cec.be/
   6 http://spyglass1.sjmercury.com/breaking/docs/057284.htm
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   (c) Copyright 1998 Gunnar Bender
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   Published August 3, 1998
   Published August 3, 1998