The judgment of the Higher Regional Court violates the complainant's right to the lawful judge under Article 101.1 sentence 2 of the Basic Law because it does not indicate the reasons why the appeal to the Federal Court of Justice was not admitted, although its admission would have been obvious in the present case.
Pursuant to section 543 (2) sentence 1 of the Code of Civil Procedure, an appeal must be granted if the case is of fundamental importance or if a decision by the appellate court is necessary for the further development of the law or to ensure uniform case law. The legal question that is decisive here, whether an internet connection owner has duties of inspection and instruction towards other users of the connection, is not answered uniformly by the higher regional courts. While in some cases the view is taken that an obligation to monitor or, if necessary, prevent the use of one's internet connection only exists if the owner of the connection has concrete indications of misuse of his or her connection, the judgment challenged by the constitutional complaint basically allows the transfer of the connection to a third party, regardless of age, to be sufficient for the obligation to instruct and monitor to arise. The Federal Court of Justice has not yet ruled on the question of whether and to what extent the owner of the connection has a duty to inspect the relevant constellation. The "Summer of Our Lives" decision referred to by the Higher Regional Court does not answer the question; it concerned a different set of facts, namely the question of the extent to which a WLAN connection must be secured against use by outside third parties.
Although it was obvious that the appeal would be allowed, the Higher Regional Court did not give any comprehensible reasons why it did not allow the appeal. However, both with regard to the importance of the case and in order to establish uniform case law, a decision by the Federal Supreme Court as a court of appeal appeared necessary. This is because the legal question that needs to be clarified here may arise in an indefinite number of further cases and therefore affects the general public's interest in the uniform development and application of the law; moreover, the challenged judgment deviates significantly from the opinion of other Higher Regional Courts.
Decision of the BverfG of 21 March 2012, 1 BvR 2365/11
Source: Press release of the BverfG No. 22/2012 of 13 April 2012
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
