Commentary on the Conclusion of Proceedings in the "CompuServe Case"

(Acquittal of Felix Somm)

 

by PROF. DR. ULRICH SIEBER

 

Moving Forward into the New Millennium

- A New Culture of Responsibility on the Internet -

 

On the eve of the new millennium the German judiciary has disposed of another

explosive waste product: On 17th November 1999 the Munich Regional Court I

(20th Criminal Division) acquitted in appeal proceedings the former managing

director of the German CompuServe GmbH of the charge of distribution of child

pornographic material. This judgment led not only to the long overdue

rehabilitation of one of the pioneers of the German online industry, who had

been burdened over a period of years with the accusation of distributing

child pornographic material, even though he was a committed champion in the

fight against pornography on the Internet. With this acquittal, the criminal

justice system also removed the relationship of tension between itself and

the Internet industry, which in recent years was impeding an effective fight

against crime on the Internet.

 

The "CompuServe Case" can be regarded at the outset - in the true style of a

play - as a combination of human acts, which commenced most unfortunately but

which were in the end capable of being turned around to produce some good.

Under this analogy the first act was the criminal preliminary investigation

proceedings with the leading role being played by a state prosecutor

characterized by a poor handling of the files, a negligent gathering of

evidence, suppression of exonerating matter and perhaps even political

obedience in what was an election period. The second act, marked by the

conviction at first instance, was characterized by a district court judge

leading a missionary crusade against child pornography on the Internet, one

who wasn't capable of learning, who high-handedly rejected motions to hear

evidence and - as illustrated in Multimedia und Recht 1998, p. 438 et seq -

who produced an astonishing stringing together of factual and legal mistakes.

Since even the case representative from the state prosecution realised the

mistake of the original indictment and requested an acquittal, this

"dangerous coup by a district court judge" (as described by Martin Huff in

the Frankfurter Allgemeiner Zeitung, 4th June 1998) provided the excitement

of a good crime story that exposed the astonished public to the helplessness

of the accused in Kafka's "Der Prozeß" during the one and a half year wait

until the appeal proceedings. With this in mind, the third act of acquittal

at appeal proceedings, of which advance notice had already been given in

corresponding motions by the state prosecution, is not so much the result of

a committed defence team, but of a state prosecution which is independent in

the best of senses and of a judge who possessed the ability to read, listen,

call on expert witnesses and learn. The case thereby transformed itself - not

only with respect to the accused, but also with respect to that part of the

Internet which could be classed "German" - from a Greek tragedy to a happy

end: The initial mistakes were overcome, truth conquered and the value

inherent in any legal proceeding subject to the rule of law with the right to

request motions to hear evidence and appeal procedures was impressively

confirmed.

 

Upon closer analysis, however, there was more at stake in the present case:

The reason for attempting to convict Felix Somm was not what some case

commentators called the Bavarian electioneering campaign, but rather the

lacking acceptance of the fact, even in our society today, that the Internet

cannot be controlled on the national level. The original indictment and the

conviction at first instance in the "CompuServe Case" can be seen as the

attempt of our society to suppress the feeling of unconsciousness of the

national state within the global Internet, manifested in the conviction of a

national hostage - in the shape of Felix Somm - who according to the

indictment should have filtered out criminal contents originating in the USA

and reaching German Internet users. This helps explain the approval which the

proceedings and the first instance judgment received among certain

superficial observers of the case. However, the expert witnesses involved in

the regional court proceedings clearly confirmed that such filtering

solutions are not possible in the cases of Internet access and network

providers and that the legislative decision taken in §5 subs. 3 Teleservices

Act is correct, under which Internet access providers in particular are not

criminally responsible for the transferred data (cf. for more detail Sieber,

Verantwortlichkeit im Internet 1999). The acquittal of Felix Somm therefore -

going beyond the individual aspect of rehabilitation of the accused -

furthermore shows clearly the failure of national solutions intended to

protect the German part of the Internet with a virtual wall against harmful

contents from abroad. In this aspect lies the general importance of the case,

which caused a sensation worldwide.

 

The obvious failure of national blocking strategies should not, however, be

understood as a capitulation of Internet law. Rather it offers us the

opportunity to henceforth pursue effective measures instead of absurd alibi

solutions. To this end, three aspects are of particular importance:

- The prevention of punishable and illegal contents as well as other crime on

the Internet firstly requires a much closer international co-operation

particularly in the domain of criminal justice. Worldwide minimum standards

of substantive law and internationally functioning co-operation procedures

are necessary. Politicians must end their complaining about the difficulties

of international legal harmonisation, which often serves merely as an alibi

for inactivity and national narrow-mindedness. The "CompuServe Case" clearly

shows that in the Internet domain, there are no alternatives to international

legal harmonisation and international co-operation.

 

- An effective fight against Internet crime also requires - as opposed to the

hitherto confrontation - a better co-operation between law enforcement

authorities and the Internet industry. The law enforcement agencies and the

Internet industry must recognize their common interest in the prevention of

illegal contents in the Internet. They are natural allies, who can only

experience success together, in tandem: law enforcement agencies require the

co-operation of the Internet industry particularly with respect to the speedy

detection of criminal offenders in the international context; the Internet

industry is dependent in many instances on the monopoly on power of law

enforcement authorities for the prevention and detection of crime on the

Internet. Effort is therefore required of both sides: the judiciary must

understand the technical difficulties caused by a control of the Internet by

industry. Moreover, the Internet industry should not lean back complacently

in the light of this judgment, but rather should  - within the scope of

existing data privacy laws - support law enforcement authorities in the fight

against crime on the Internet in such a way even as to go beyond their

obligations under law. If this co-operation does not develop on a voluntary

basis, the question of legal regulation will quickly arise, covering e.g.

duties on the part of Internet providers of data storage, identification and

information.

 

- Furthermore, the users of the Internet must also take on more personal

responsibility. Within the domain of material harmful to minors, parents

should become more pro-active, e.g. by educating their children of the

dangers and using appropriate software products. With respect to the

prevention of child pornography, hotlines (including private hotlines) can

play a part by accepting the particular reports and passing them on to the

relevant providers. Similarly, deception on the Internet can be contained by

increased educational measures  - e.g. in the form of information sites or

hotlines from consumer protection groups - and private security measures. In

this way the role of the state will be changed in many areas of the Internet:

frequently it will be no longer capable of directly protecting its citizens

but merely of creating the instruments with which citizens can take their

protection into their own hands.

 

As a result, the acquittal of Felix Somm means not only the rehabilitation of

an innocent citizen who was made a national hostage in the international

Internet. Rather the case must also be seen as an opportunity to abandon

absurd alibi solutions and replace the unnecessary confrontation between law

enforcement and the Internet industry with an effective co-operation. The

solutions of the next millennium demand internationalisation, co-operation

and an increased responsibility on the part of the citizen. The point in

issue - reduced to its basics - is the need to develop a new culture of

responsibility for the new Millennium.

 

Prof. Dr. Ulrich Sieber is Ordinarius in the Professorial Chair for Criminal

Law, Criminal Procedural Law, Information Law and Legal Informatics at the

University of Würzburg. He is author of the recently published book

"Verantwortlichkeit im Internet" (C.H. Beck Verlag, Munich 1999) and was part

of the defence team for Felix Somm; for more details see

<http://www.jura.uni-wuerzburg.de/lst/sieber>.

 

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