|
|
|
|
Bavaria v. Felix Somm: The Pornography Conviction of the Former CompuServe Manager
by Gunnar Bender
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.
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.
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.
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 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.
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.
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?
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.
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.
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.
Endnotes
| Note 1: | http://www.online-recht.de/vorent.html?LGHamburg980512 Back. |
| Note 2: | http://www.online-recht.de/vorent.html?AGBerlin-Tiergarten970630 Back. |
| Note 3: | http://www.iid.de/iukdg/iukdge.html#a1 Back. |
| Note 4: | http://www.iid.de/iukdg/iukdge.html#a1 Back. |
| Note 5: | http://www.ispo.cec.be/ Back. |
| Note 6: | http://spyglass1.sjmercury.com/breaking/docs/057284.htm Back. |