Recent Developments in the Liability of ISPs for Illegal
Internet Content
(September 2002)
The “Compuserve Case”
On 17th November 1999 the Munich Regional Court I (20th Criminal Division) acquitted Felix Somm, the former managing director of the German Compuserve GmbH, of the charge of distribution of child pornographic material. According to the indictment in the case Mr. Somm failed to filter out criminal contents originating in the USA that were reaching German internet users. Although found guilty by the District Court at first instance, on appeal his conviction was quashed. This was in no small part due to the expert witnesses who confirmed that such filtering solutions are not possible in the cases of internet access and network providers. They also confirmed that the legislative decision taken in §5 subsection 3 of the German Teleservices Act is correct. That provision states as follows:
Service providers are not responsible for third-party content to which they
merely provide access for use. The automatic and temporary storage of
third-party content due to a user's access is deemed to be the provision of
access.
i.e. internet access providers in particular are not criminally responsible for the transferred data.
In 1999 a London trial court ruled that a UK ISP called Demon Internet was liable for defamatory comments that were posted on one of its news groups. In this case, a British physicist, Laurence Godfrey, alleged that a forged message containing defamatory information appeared in the soc.culture.thai newsgroup in January 1997, and the offending article remained on Demon Internets despite his requests to remove it. The message itself did not originate from a Demon newsgroup, however, but was replicated from a Usenet newsgroup and displayed on Demon's server, among others. The point of law centred around whether Demon was responsible for information posted to and made available from newsgroups that are held on its servers.
