According to a judgment announced on June 19, 2008, by the 7th Civil Chamber of the Munich I Regional Court (LG München I), parents can be held liable alongside their children if the latter unlawfully and culpably make copyrighted works of third parties publicly accessible using the internet access provided by their parents.
The then 16-year-old daughter of the defendant parents uploaded videos to the internet portals www.myvideo.de and www.video.web.de. These videos were created from 70 photographs, the copyrights of which belonged to the plaintiff.
In addition to the daughter, the plaintiff also sought information and damages from the parents. No cease and desist declaration had been submitted out of court. During the hearing on January 24, 2008, the daughter then submitted a cease and desist declaration, whereupon the plaintiff's claim in this regard was mutually declared settled. The Munich I Regional Court therefore only ruled on the claims for damages. The plaintiff was of the opinion that the parents were liable under the principles of liability for interference, as they had violated their parental duties of instruction and supervision. They had provided their daughter with an internet connection and allowed her to use it at will, without further monitoring internet usage within the scope of their parental duty of care.
The defendants denied any breach of duty. They argued that their daughter was more proficient with the internet than they were. She had taken an IT course at school. There had been no previous infringements. They claimed that internet access is simply impossible for parents to control nowadays.
The court ruled in favor of the plaintiff.
In the chamber's view, the defendants violated their parental duty of care. According to the jurisprudence of the Federal Court of Justice (BGH), minors generally always require supervision. However, the person responsible for supervision (in this case, the parents) can be exonerated if they prove that they either fulfilled their duty of care, or that the damage would have occurred even with proper supervision or repeated instruction. The person responsible for supervision has fulfilled their duty if they have taken the necessary actions considering the age, nature, and character of the person requiring supervision, as well as the specific situation leading to the infringement of legal rights.
The extent of required supervision for minors is determined by the child's age, nature, and character, as well as the foreseeability of harmful behavior. Overall, it is based on what reasonable and prudent parents would reasonably undertake in the specific situation to prevent their child from causing harm to third parties. Therefore, to ascertain the scope of their duty, the person responsible for supervision must also pay attention to what the children do in their free time, occasionally observe them in this regard, and notice objects children interact with when tidying their room and cleaning their clothes.
However, in the chamber's opinion, the defendants could not prove that they had fulfilled their duty of instruction.
The exact wording states:
„However, an introductory instruction [which had not been provided in this case] is generally required, as the use of a computer with an internet connection – unless a „flat rate“ has been agreed upon – can not only incur significant connection fees but also entails considerable civil liability risks, not to mention the dangers posed by content harmful to minors. In this respect, a computer connected to the internet is equivalent to a „dangerous object“ within the meaning of the jurisprudence cited above.
To the extent that defendants 1 and 2 argue that instruction was exceptionally unnecessary in this case because their daughter was significantly more technically proficient in the field of computers/internet, this cannot be equated with the question of liability risks associated with internet use.
Furthermore, the IT course attended by defendant 3 [the daughter] at school cannot lead to the conclusion that the need for instruction was obviated, as its learning content was not disclosed.
It is doubtful whether the need for instruction for defendant 3 was obviated due to the general discussion, particularly regarding the copyright permissibility of so-called file-sharing platforms on the internet. There would have been strong reasons to use this as an occasion for an instructional discussion. However, this question can remain 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.
Defendants 1 and 2 presented no evidence regarding whether, when, or how such monitoring took place. Nor did they provide any compelling indications that ongoing monitoring was exceptionally unnecessary. [...]”
(Proceedings of the Munich I Regional Court, file no. 7 O 16402/07, not yet legally binding at the time of publication)
Source: Press Release 33/08 of the Munich I Regional Court, Judgment of June 16, 2008, file no. 7 O 16402/07, Press Spokesperson Judge Dr. Frank Tholl
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
