File Sharing

File sharing: connection owners not liable for adult family members

The German Federal Court of Justice has come to the conclusion that ‘internet connection owners are not liable for the actions of their adult family members, provided there were no indications that they were using the internet connection to conduct illegal file sharing’.

File sharing: connection owners not liable for adult family members © Africa Studio - Fotolia.com

File sharing: connection owners not liable for adult family members © Africa Studio – Fotolia.com

File sharing liability

The Federal Court of Justice (Bundesgerichtshof, BGH) justified its decision by referring to the fact that due to the close familial connection, many connection owners allow family members unhindered access to the internet and by arguing that adult family members are responsible for their own actions.

“In light of the mutual trust that exists between family members and the personal responsibility of adult family members, an internet connection owner may allow another adult family member to use the internet without the need to issue warnings [concerning file sharing] or to monitor [their internet use]. The situation is different if the connection owner obtains knowledge, perhaps through a warning letter, that the adult family member has used the internet connection to commit legal infringements. In this case, the connection owner must take relevant action to prevent further legal infringements being committed.”

German lawyer and partner at WILDE BEUGER SOLMECKE, Christian Solmecke, who represents thousands of defendants in file sharing cases commented, “This can be considered a landmark judgment. The result is good and correct”

Evidential burden

Mr Solmecke added, “It is a shame that the BGH did not discuss the complicated question of bringing evidence in file sharing cases. The topic of evidence in file sharing cases is hotly debated and requires clear judicial guidance. Perhaps the written judgment will provide more light in the matter when it is published.”

Liability for file sharing in public establishments

It remains unclear whether cases concerning shared apartments will also be judged in the same manner. However, some courts have already ruled that internet connection owners are not liable in such cases. One example is a case in the Regional Court of Cologne in which it was held that a tenant is not under a duty to monitor or issue warnings to a sub-tenant (case ref. 14 O 320/12).

“The question concerning the liability of café, hotel and restaurant owners in file sharing cases also remains unanswered. Here too, there is a great need for clarification,” Mr Solmecke continued.

Important ruling

“The judgment today is without doubt a very important ruling in file sharing law. Nevertheless, legal uncertainty continues to exist and this is cumbersome for the music industry. The good news is that the BGH’s judgment concerns all adult family members, meaning that there is now legal certainty surrounding the liability for the actions of spouses,” Mr Solmecke concludes.

You can find a press release relating to the Bundesgerichtshof’s ruling here.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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