File Sharing

File sharing: rebutting the presumption of guilt

Under the current law on file sharing in Germany, there is a presumption of guilt against internet connection owner accused of infringing copyright through file sharing. This presumption can be rebutted under certain circumstances.

File sharing: rebutting the presumption of guilt © Benjamin-Duda-Fotolia

File sharing: rebutting the presumption of guilt © Benjamin-Duda-Fotolia

File sharing: presumption of guilt

The county court in Hamburg, Germany clarified that in order to rebut the presumption of guilt, it is sufficient for accused connection owners to plead in court that a third party had access to the internet connection (judgment from 28.05.2014, case ref. 31c C21/13).

Accused of copyright infringement

The judgment came after one of WILDE BEUGER SOLMECKE’s clients was sued on behalf of Universal Music GmbH by Rasch Rechtsanwälte for allegedly sharing a music album from Jan Delay on a file sharing website.

Our client submitted an undertaking to cease and desist but refused to pay the sought after settlement amount of €1,200.

Access by third parties

The opposition asserted that our client had not submitted strong enough evidence to rebut the presumption of guilt. They argued that our client’s submission that he had not been at home at the time of the alleged infringement was insufficient.

Our client submitted that four other family members lived at home and had access to the internet connection via the family computer which was connected via a cable. Two family members, the defendant’s daughters, refused to give evidence. The third daughter claimed she could not remember whether she had been at home on the day of the alleged copyright infringement, but denied using file sharing websites.

Prohibition on using the internet for file sharing

Our client also submitted that he had sufficiently instructed his daughters about not using the internet for file sharing.

Possibility of third party access sufficient

The court ruled that the presumption of guilt had already been rebutted at the point when the defendant asserted that other family members had access to the internet connection.

The court further noted that defendants are not under a duty to bring evidence to absolve themselves of the accusations. Instead, there must only be a serious possibility that the alleged infringements were committed in some other way. Here, the possibility that other family members may have used the file sharing website was sufficient.

Leading case law

The judgment reached by the county court in Hamburg is consistent with the case law of Germany’s Federal Court of Justice (BearShare; Bundesgerichtshof, BGH) which regards it to be sufficient when defendants plead that a third party had access to the internet connection. In such cases, the BGH even goes so far as to completely exclude the presumption of guilt against internet connection owners. According to the BGH, the question of evidence is no longer relevant in such cases.

Related:

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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