The operator of a so-called card-sharing server, who is himself a customer of a pay-TV provider, fulfils the offence of computer fraud if he decrypts broadcast signals with pay-TV programmes for third parties via his server without authorisation. This was decided by the 2nd Criminal Senate of the Higher Regional Court of Celle in its order of 31 August 2016, confirming the case law of the Regional Court of Verden in this respect (file reference 2 Ss 93/16).The defendant had himself taken out a subscription with a pay-TV provider whose general terms and conditions oblige the subscriber to use a card handed over for decrypting the broadcast signal exclusively for personal use. Since spring 2009, he had been operating a so-called card-sharing server, with the help of which he enabled his customers to receive the television programme unencrypted against payment of a fee and without concluding a subscription contract with the pay-TV broadcaster. In his general terms and conditions, he pointed out that the use of the control words required for decryption was only permitted outside the European Union. However, the accused acquired his customers without exception in the territory of the Federal Republic of Germany.
The Verden Regional Court had sentenced the defendant to one year's imprisonment on 65 counts of computer fraud, the execution of which was suspended. In its decision, the Senate dismissed the defendant's appeal against this judgment insofar as it was directed against the conviction for computer fraud. The Higher Regional Court referred the case back to the Verden Regional Court for sentencing.
The Senate considers the disclosure of the control word for data decryption to be an unauthorized use of data that leads to a direct financial loss for the pay TV station. This gives the card-sharing customer the opportunity to watch the decrypted program without paying money to the pay-TV broadcaster. The defendant's general terms and conditions of business did not render the defendant's intent to defraud invalid because all of its customers were located in the territory of the Federal Republic of Germany, i.e., in the broadcast area of the pay-TV station.
Source: Press release of the OLG Celle
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
