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Genau: Somm hatte keinen Vorsatz..........
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- Subject: Genau: Somm hatte keinen Vorsatz..........
- From: UZS106@ibm.rhrz.uni-bonn.de
- Date: Mon, 3 Aug 1998 17:30:23 +0200
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Dass ich nicht lache:
Bavaria v. Felix Somm: The Pornography Conviction of the Former
Case Documents at: http://www.digital-law.net/papers/index.html
by Dr. Gunnar Bender
Mnster / Germany
IJCLP Web-Doc 14-1-1998
[INLINE] Download Article
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
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
[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
[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.
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(c) Copyright 1998 Gunnar Bender
web.design by camps
Published August 3, 1998
Published August 3, 1998