Commentary
on the Conclusion of Proceedings in the "CompuServe Case"
(Acquittal
of Felix Somm)
by PROF.
DR. ULRICH SIEBER
Moving
Forward into the New Millennium
- A New
Culture of Responsibility on the Internet -
On the eve
of the new millennium the German judiciary has disposed of another
explosive
waste product: On 17th November 1999 the Munich Regional Court I
(20th
Criminal Division) acquitted in appeal proceedings the former managing
director
of the German CompuServe GmbH of the charge of distribution of child
pornographic
material. This judgment led not only to the long overdue
rehabilitation
of one of the pioneers of the German online industry, who had
been
burdened over a period of years with the accusation of distributing
child
pornographic material, even though he was a committed champion in the
fight
against pornography on the Internet. With this acquittal, the criminal
justice
system also removed the relationship of tension between itself and
the
Internet industry, which in recent years was impeding an effective fight
against
crime on the Internet.
The
"CompuServe Case" can be regarded at the outset - in the true style
of a
play - as
a combination of human acts, which commenced most unfortunately but
which were
in the end capable of being turned around to produce some good.
Under this
analogy the first act was the criminal preliminary investigation
proceedings
with the leading role being played by a state prosecutor
characterized
by a poor handling of the files, a negligent gathering of
evidence,
suppression of exonerating matter and perhaps even political
obedience
in what was an election period. The second act, marked by the
conviction
at first instance, was characterized by a district court judge
leading a
missionary crusade against child pornography on the Internet, one
who wasn't
capable of learning, who high-handedly rejected motions to hear
evidence
and - as illustrated in Multimedia und Recht 1998, p. 438 et seq -
who
produced an astonishing stringing together of factual and legal mistakes.
Since even
the case representative from the state prosecution realised the
mistake of
the original indictment and requested an acquittal, this
"dangerous
coup by a district court judge" (as described by Martin Huff in
the
Frankfurter Allgemeiner Zeitung, 4th June 1998) provided the excitement
of a good
crime story that exposed the astonished public to the helplessness
of the
accused in Kafka's "Der Proze�" during the one and a half year wait
until the
appeal proceedings. With this in mind, the third act of acquittal
at appeal
proceedings, of which advance notice had already been given in
corresponding
motions by the state prosecution, is not so much the result of
a committed
defence team, but of a state prosecution which is independent in
the best
of senses and of a judge who possessed the ability to read, listen,
call on
expert witnesses and learn. The case thereby transformed itself - not
only with
respect to the accused, but also with respect to that part of the
Internet
which could be classed "German" - from a Greek tragedy to a happy
end: The
initial mistakes were overcome, truth conquered and the value
inherent
in any legal proceeding subject to the rule of law with the right to
request
motions to hear evidence and appeal procedures was impressively
confirmed.
Upon
closer analysis, however, there was more at stake in the present case:
The reason
for attempting to convict Felix Somm was not what some case
commentators
called the Bavarian electioneering campaign, but rather the
lacking
acceptance of the fact, even in our society today, that the Internet
cannot be
controlled on the national level. The original indictment and the
conviction
at first instance in the "CompuServe Case" can be seen as the
attempt of
our society to suppress the feeling of unconsciousness of the
national
state within the global Internet, manifested in the conviction of a
national
hostage - in the shape of Felix Somm - who according to the
indictment
should have filtered out criminal contents originating in the USA
and
reaching German Internet users. This helps explain the approval which the
proceedings
and the first instance judgment received among certain
superficial
observers of the case. However, the expert witnesses involved in
the
regional court proceedings clearly confirmed that such filtering
solutions
are not possible in the cases of Internet access and network
providers
and that the legislative decision taken in �5 subs. 3 Teleservices
Act is
correct, under which Internet access providers in particular are not
criminally
responsible for the transferred data (cf. for more detail Sieber,
Verantwortlichkeit im Internet 1999). The
acquittal of Felix Somm therefore -
going
beyond the individual aspect of rehabilitation of the accused -
furthermore
shows clearly the failure of national solutions intended to
protect
the German part of the Internet with a virtual wall against harmful
contents
from abroad. In this aspect lies the general importance of the case,
which
caused a sensation worldwide.
The
obvious failure of national blocking strategies should not, however, be
understood
as a capitulation of Internet law. Rather it offers us the
opportunity
to henceforth pursue effective measures instead of absurd alibi
solutions.
To this end, three aspects are of particular importance:
- The
prevention of punishable and illegal contents as well as other crime on
the
Internet firstly requires a much closer international co-operation
particularly
in the domain of criminal justice. Worldwide minimum standards
of
substantive law and internationally functioning co-operation procedures
are
necessary. Politicians must end their complaining about the difficulties
of
international legal harmonisation, which often serves merely as an alibi
for
inactivity and national narrow-mindedness. The "CompuServe Case"
clearly
shows that
in the Internet domain, there are no alternatives to international
legal
harmonisation and international co-operation.
- An
effective fight against Internet crime also requires - as opposed to the
hitherto
confrontation - a better co-operation between law enforcement
authorities
and the Internet industry. The law enforcement agencies and the
Internet
industry must recognize their common interest in the prevention of
illegal
contents in the Internet. They are natural allies, who can only
experience
success together, in tandem: law enforcement agencies require the
co-operation
of the Internet industry particularly with respect to the speedy
detection
of criminal offenders in the international context; the Internet
industry
is dependent in many instances on the monopoly on power of law
enforcement
authorities for the prevention and detection of crime on the
Internet.
Effort is therefore required of both sides: the judiciary must
understand
the technical difficulties caused by a control of the Internet by
industry.
Moreover, the Internet industry should not lean back complacently
in the
light of this judgment, but rather should�
- within the scope of
existing
data privacy laws - support law enforcement authorities in the fight
against
crime on the Internet in such a way even as to go beyond their
obligations
under law. If this co-operation does not develop on a voluntary
basis, the
question of legal regulation will quickly arise, covering e.g.
duties on
the part of Internet providers of data storage, identification and
information.
-
Furthermore, the users of the Internet must also take on more personal
responsibility.
Within the domain of material harmful to minors, parents
should
become more pro-active, e.g. by educating their children of the
dangers
and using appropriate software products. With respect to the
prevention
of child pornography, hotlines (including private hotlines) can
play a
part by accepting the particular reports and passing them on to the
relevant
providers. Similarly, deception on the Internet can be contained by
increased
educational measures� - e.g. in the form
of information sites or
hotlines
from consumer protection groups - and private security measures. In
this way
the role of the state will be changed in many areas of the Internet:
frequently
it will be no longer capable of directly protecting its citizens
but merely
of creating the instruments with which citizens can take their
protection
into their own hands.
As a
result, the acquittal of Felix Somm means not only the rehabilitation of
an
innocent citizen who was made a national hostage in the international
Internet.
Rather the case must also be seen as an opportunity to abandon
absurd
alibi solutions and replace the unnecessary confrontation between law
enforcement
and the Internet industry with an effective co-operation. The
solutions
of the next millennium demand internationalisation, co-operation
and an
increased responsibility on the part of the citizen. The point in
issue -
reduced to its basics - is the need to develop a new culture of
responsibility
for the new Millennium.
Prof. Dr.
Ulrich Sieber is Ordinarius in the Professorial Chair for Criminal
Law,
Criminal Procedural Law, Information Law and Legal Informatics at the
University
of W�rzburg. He is author of the recently published book
"Verantwortlichkeit im Internet"
(C.H. Beck Verlag, Munich 1999) and was part
of the
defence team for Felix Somm; for more details see
<http://www.jura.uni-wuerzburg.de/lst/sieber>.
Requests
for reprints of this commentary should be made to the above address.
