File Sharing

Rebutting the presumption of guilt in file sharing cases

What are the legal requirements an internet connection owner must fulfil in order to rebut the presumption of guilt in file sharing cases? The Higher Regional Court of Cologne answered this question in a recent judgment. However, it is unclear whether the decision will remain legally binding.

Rebutting the presumption of guilt in file sharing cases © Africa Studio -

Rebutting the presumption of guilt in file sharing cases © Africa Studio –

File sharing warning letter

In this case, an internet connection owner had received a warning letter accusing him of infringing copyright by making 11,001 copyright-protected audio files publicly available on file sharing websites.

The man chose not to submit the required declaration to cease and desist. This led the copyright holder to bring a claim against him for reimbursement of legal costs and compensation amounting to €200 for each music title.


In the lower court the connection owner denied having breached copyright and “tentatively” pointed out that at the time the copyright infringement was committed his wife also had access to the internet connection. The court ruled against him.

On appeal to Cologne’s Higher Regional Court, the connection owner strengthened his position by stating that at the time the copyright infringement was committed he was not at home and that before leaving his apartment, he had switched off his computer.

He also pointed out that at the time the alleged infringement had taken place the man’s wife and three stepchildren all had independent access to his computer.

Finally the man submitted that the wireless router was encrypted and protected by a password.

Vague assertions

Despite these submissions, the Higher Regional Court rejected the connection owner’s appeal (judgment from 02.08.2013, Az. 6 U 10/13).

The court reached the conclusion that the man had not provided sufficient evidence to support his submissions that he had not personally conducted the copyright infringement. Furthermore, the man had submitted no concrete evidence to properly support the assertion that one of his family members could have been responsible for the copyright infringement.

In addition that court found that it was procedurally inadmissible to consider the extended assertions made on appeal. This is because appeal courts are generally not permitted to hear evidence on facts which were not raised in previous proceedings (§ 529(1)(2); § 531(2) German Civil Procedure Rules).

Appeal to Germany’s Court of Justice

Due to the fundamental legal importance of this case, the Higher Regional Court gave permission to appeal to Germany’s Court of Justice (Bundesgerichtshof, BGH).

It is reasonable to assume that the BGH will consider this case in light of the “Morpheus” judgment (Az. I ZR 74/12) in which it was held that parents are not obliged to monitor their children’s internet use.

It seems that the Cologne courts expected the father to bring concrete details of his wife or children’s file sharing activities. In our opinion, requiring family members to incriminate each other goes one step too far.

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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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