Parents are sometimes liable for their children after all - at least in Munich

According to a judgement handed down on 19 June 2008 by the 7th Civil Chamber of the Regional Court of Munich I ( LG München I), parents can be held liable alongside their children if they unlawfully and culpably make copyrighted works of third parties publicly accessible by means of the parental Internet access provided.

The then 16-year-old daughter of the defendant parents posted videos on the internet portals www.myvideo.de and www.video.web.de, which were made from 70 photographs whose copyrights were held by the plaintiff.

In addition to the daughter, the plaintiff also made a claim against the parents for information and damages. A declaration to cease and desist had not been made out of court. At the hearing on 24 January 2008, the daughter made a declaration to cease and desist, whereupon the plaintiff's claim was declared settled by mutual agreement. The Regional Court Munich I therefore only ruled on the claims for damages. The plaintiff was of the opinion that the parents were liable according to the principles of "Stoererhaftung" (Breach of Duty of Care), because they had violated their parental duties of instruction and examination. They had provided their daughter with an internet connection and allowed her to do as she pleased without further checking the use of the internet within the scope of the parental duty of supervision.

The defendants denied a breach of duty. Their daughter was - as far as the internet was concerned - more experienced than they were. She had taken an IT course at school. So far, there had been no infringements. Nowadays, access to the internet is absolutely uncontrollable for parents.

The court found in favour of the plaintiff.

In the opinion of the chamber, the defendants violated their parental duty of supervision. In principle, according to the case law of the Federal Supreme Court (BGH), minors always require supervision. However, the person obliged to supervise (in this case the parents) can exonerate himself if he proves that he either fulfilled his duty of supervision or that the damage would have occurred even if he had been properly supervised or repeatedly instructed. The person obliged to supervise has fulfilled his or her duty if he or she has done what was necessary with regard to the age, nature and character of the person in need of supervision as well as with regard to the concrete situation leading to the violation of legal rights.

In the case of minors, the degree of supervision required is determined according to the age, peculiarity and character of the child as well as the foreseeability of the harmful conduct as a whole, according to what reasonable parents must reasonably take in the concrete situation in terms of necessary and reasonable measures to prevent harm to third parties by their child. In order to determine the extent of his or her duty, the person responsible for supervision must therefore also look at what the children do in their free time, occasionally observe them in this respect, pay attention to objects with which the children occupy themselves when tidying the children's room and cleaning their clothes.

However, in the board's opinion, the defendants could not prove that they had fulfilled their duty to instruct.

Literally it says:

"An instruction [which was not given in the present case] is, however, to be demanded in principle, since the use of a computer with an Internet connection - as long as no "flat rate" has been agreed upon - can not only cause considerable connection fees, but also harbours considerable liability risks under civil law, not to mention the dangers posed by contents harmful to minors. In this respect, a computer connected to the internet is equivalent to a "dangerous object" in the sense of the case law cited above.

Insofar as the 1st and 2nd defendants point out that in this case instruction was exceptionally unnecessary because their daughter was much more technically versed in the field of computers/internet, this cannot be equated with the question of the risks of internet use under liability law.

Nor can the need for instruction be inferred from the IT course attended by the third defendant [the daughter] at school, as its learning content was not communicated.

It is doubtful whether the general discussion, in particular regarding the permissibility of so-called file-sharing networks on the internet under copyright law, has eliminated the need to instruct the third defendant. There would have been good reasons to take this as a reason for an instructional discussion. However, this question can be left open in the present case.

This is because, irrespective of the need for an introductory discussion, parental supervision also requires ongoing monitoring of whether the child's use of the Internet is within the limits set by the instruction.
This is because, irrespective of the need for an introductory discussion, parental supervision also requires ongoing monitoring to ensure that the child's use of the Internet remains within the limits set by the instruction given.

The 1st and 2nd defendants have not submitted anything about the fact that, when and how such monitoring took place. They have also not presented any substantive evidence that ongoing monitoring was exceptionally unnecessary. [...]"

(Proceedings of the Munich I Regional Court, Case No. 7 O 16402/07, not yet final at the time of publication)

Source: Press release 33/08 of the Regional Court Munich I, judgement of 16.06.2008, file no. 7 O 16402/07, press spokesman RiLG Dr. Frank Tholl

 

Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de

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