The fundamental right to respect for family life under Article 6.1 of the Basic Law does not preclude a civil procedural obligation of the owner of an internet connection to disclose which family member has used the connection if a copyright infringement has been committed via the connection. With this reasoning, the 2nd Chamber of the First Senate, in a decision published on 3 April 2019, did not accept the constitutional complaint of a couple against a conviction for damages and reimbursement of warning costs, who knew which of their children had made music content publicly accessible in breach of copyright, but had not disclosed this in the civil proceedings. Accordingly, a right not to incriminate family members arises from Article 6 (1) of the Basic Law, but not protection against negative procedural consequences of this silence.
Facts:
The The complainants are a married couple and joint owners of an internet connection. The connection was used to download a music album by means of so-called file sharing software. file-sharing software on an internet "file-sharing platform". offered for download. The plaintiff in the main proceedings (hereinafter: the plaintiff) is entitled to the the exploitation rights to the music titles concerned. The complainants issued a cease-and-desist declaration in response to the plaintiff's warning, but refused to pay the but refused to pay damages and legal fees. They themselves had not used their connection during the relevant period; they knew that one of their children had used the connection, but they did not want to but did not want to reveal which one. The Regional Court ordered them to pay damages and reimbursement of out-of-court legal fees for copyright infringement. copyright infringement. The appeal and the appeal on points of law were unsuccessful.
Main Considerations of the Board:
The interpretation of the law in the challenged decisions does not violate the the complainants in their fundamental right to respect for family life from Article 6.1 of the Basic Law.
1. to be sure there is an encroachment on its sphere of protection, which places the family under the protection of the state and also encompasses the relationship between parents and their and their children of full age. Accordingly, family members are are entitled to freely shape their community in family responsibility and consideration. freely.
2. however this interference is justified. The interpretation of the relevant standards - § 97.2 sentence 1, § 85.1 UrhG in conjunction with § 138 ZPO - by the in conjunction with § 138 ZPO - by the Federal Court of Justice and the courts of courts of instance do not violate the complainants' fundamental right under Article 6.1 of the Basic Law. para. 1 of the Basic Law. The protection of Article 14 of the Basic Law, on which the plaintiff as the rights holder, is also of importance in weighing up the conflicting fundamental fundamental rights in the case at issue also carries considerable weight.
The When weighing the interests of property protection with the interests of family protection, the the interests of family protection, the courts have met the constitutional requirements. have been met. According to the decision of the Federal Court of Justice, the complainants to rebut the presumption that they are the perpetrators. as the owner of the connection, the complainants must disclose their knowledge of the of a possible act of infringement and also reveal which of their children committed the act of committed the act of infringement, if they have gained knowledge of it. This balancing of interests takes sufficient account of the requirement of practical concordance and is concordance and at any rate remains within the framework of the framework for assessment. The spillover effect of the fundamental rights affected by the decisions fundamental rights affected by the decisions is sufficiently taken into account in the interpretation of § 138 of the Code of Civil Procedure.
It is true that civil procedural law provides protection against self-incrimination and a party's and a party's duty to tell the truth has its limits where it would be forced to disclose a to disclose a criminal offence committed by him. The same might apply when it comes to incriminations of close relatives. The fundamental rights parties and participants in the proceedings who are protected under fundamental law against parties to the proceedings who are protected by fundamental rights against being forced to be subjected to the risk of an assessment of the facts that is unfavourable to them. Further protection is constitutionally required. On the contrary, the judicial enforcement of fundamental rights - in this case, the right of the rights holder to right of the right holder under Section 85 (1) sentence 1 UrhG - which is must be given due consideration.
The Federal Court of Justice takes into account that rights owners regularly have no possibility to rights in file-sharing proceedings regularly have no possibility to access the circumstances relating to the use of the Internet by the connection holder, which is the area of Internet use by the subscriber, which is completely out of their reach. In favour of the plaintiff as the holder of the ancillary copyright subject to Art. 14 GG of Article 14 of the Basic Law, it thus takes into account the plaintiff's interest in an effective copyright position against unauthorised acts of exploitation. The The court keeps the impairment of the complainants' family relationships within bounds. within limits. For family members do not have to incriminate each other, if the actual perpetrator cannot be identified. Rather, they only bear the risk of a factual assessment that is unfavourable to them if they do not fulfil the and evidence requirements are not met. The possibility of disclosing intra-family tensions and relationships by remaining silent in the proceedings or at least not having to or at least not to have to disclose them to the outside world, does not mean that this silence silence would have to exclude liability in general, i.e. without procedural consequences. thus without any procedural consequences. The de facto "option" granted in civil proceedings to safeguard Art. 6 GG "choice" in civil proceedings to disclose knowledge within the family or to remain silent or to remain silent, cannot take precedence over the enforcement of Article 14 of the Basic The protection of the family does not serve to protect the family. The protection of the family does not serve to avoid one's own liability for infringement of rights for tactical considerations. liability for the infringement of intellectual property rights for tactical reasons. intellectual property rights. The mere fact of living together with other family members, does not automatically lead to the exclusion of liability for the owner of the connection. Insofar as the complainants argue that there are better and, in relation to civil more consistent solutions for the balancing of the legal positions of intellectual between the legal positions of the owners of intellectual property rights and their users, this is and their users, this does not carry any weight under constitutional law. Whether it whether it would also be justified to impose duties of enquiry on the or enquiry obligations on the owner of the connection, did not need to be decided.
3. nothing to the contrary Nothing to the contrary results from European fundamental rights. In particular, the European Union law does not in itself preclude the applicability of the fundamental rights of the Basic Law. For insofar as Union law does not conclusively the fundamental rights of the Basic Law remain applicable. Within the framework in which the Member States are left room for manoeuvre in implementation, courts are consequently also competent in the area of application of the of the Copyright Directive and the Enforcement Directive, the courts are bound by the fundamental Basic Law. This is important for the enforcement of copyright claims under the This is the case for the enforcement of copyright claims under non-harmonised civil procedural law. The case law of the Federal Court of Justice accurately reflects the requirements of requirements of European Union law.
Decision of the BverfG of 18 February 2019, file number 1 BvR 2556/17
Source: Press release of the BVerfG No. 25/2019 of 3 April 2019
GoldbergUllrich Lawyers 2019
