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German CompuServe case

Decision on appeal

German Court Overturns Pornography Ruling Against Compuserve (New York Times) Overturning a verdict that has horrified the Internet industry in Germany for the last two years, a Bavarian court ruled that the former top executive of Compuserve's German subsidiary is not guilty of distributing pornography. The decision is a big victory for online services, which had viewed the case as a crucial legal test of their legal responsibility for material that customers might obtain from the Internet.

For a full set of references see The Somm Case - Der Fall "Somm"

First Instance decision

The full text of the first-instance judgment in the case of Felix Somm can be found at http://www.cyber-rights.org/isps/somm-dec.htm (unofficial English translation)

The following summary is provided for the convenience of non-German speakers.

Findings of fact:

The defendant was at the time of the alleged offences managing director of CompuServe Germany, a 100% subsidiary of CompuServe USA. CompuServe Germany provided local dial-up access to CompuServe USA's facilities (proprietary content and access to Internet services) for the latter's German subscribers.

At the end of 1995, the German police served on the defendant a list of 282 Usenet newsgroups which, in their view, contained images of violence, child pornography and bestiality. The incriminated content was stored on CompuServe USA's newsgroup servers. CompuServe USA blocked access to the vast majority of these newsgroups for all its subscribers worldwide. It then made available parental control software to its subscribers and unblocked the newsgroups.

On subsequent access by police to newsgroups through CompuServe, messages allegedly containing images of violence, child pornography and bestiality were found.

The charges relate to 12 of these images.

The judge held:

a) The defendant together with CompuServe USA made access to material containing violence, child pornography and bestiality publicly available, contrary to art 184 Abs 3 StGB (Criminal Code).

b) CompuServe USA was technically able to block at any time access to the newsgroups containing the images.

c) Compuserve USA in restoring or failing to block access to the newsgroups in question acted

The defendant shared the knowledge and the motive.

d) It was no defence that parental control software was made available to subscribers, since giving access to adults to the incriminated content was illegal.

e) The defendant was an accessory, because CompuServe Deutschland provided access to CompuServe USA's services for the latter's German subscribers as a business activity, sharing the revenue with CompuServe USA.

f) The defendant could not rely on the provisions of article 5 Teledienstegesetz (TeleServices Act) restricting liability of internet service providers since

The defendant was also convicted on further charges related to the games "Doom", "Heretic" and "Wolfenstein 3 D", available on CompuServe's own forums. These games were placed on the index of material dangerous to minors by the Bundesprüfstelle für jugendgefährdende Schriften.


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