Free speech advocates are decrying a Bavarian court's conviction today of a former CompuServe executive accused of trafficking child pornography over the Net.
Felix Somm, general manager for CompuServe in Germany until he resigned last April after being indicted, was handed a two-year suspended sentence from the Munich district court for 13 counts of distributing online pornography and other illegal material--even though he had no direct role in disseminating it on the Internet.
The decision sent shock waves across the civil liberties and Net access provider communities as the court set a precedent in holding the online service's manager liable for illegal content transmitted over CompuServe's network by a third party. Advocates worry that increased ISP liability sets the stage for them to police Net users or otherwise be in danger of prosecution.
"The ruling sounds an ominous note for Internet users everywhere," said Barry Steinhardt, president of the Electronic Frontier Foundation.
"It means that the most conservative nation in western Europe now can impose its very restrictive speech laws on speakers throughout the world--CompuServe, after all, is an international company," he added. "It is only a matter of time in the U.S. before we see requests from other governments for extradition of U.S. citizens for speech crimes on the Net."
Even more baffling is the fact that the ruling flies in the face of the German multimedia law that passed in July, which states ISPs can be held accountable for illegal material on their services only if they know about the content and blocking it is technically possible. Moreover, prosecutors reversed their position when the law passed, telling the court Somm should no longer be held responsible for the illegal content found on CompuServe.
But Judge Wilhelm Hubbert went his own way, ruling that ISPs are essentially accomplices to crimes carried out over their networks. "Even on the Internet, there can be no law-free zones," the court said. "The accused is not a victim. He abused the medium."
In the United States, courts have excused providers such as America Online, which owns CompuServe, from similar cases based on a law that declares interactive services are not to be treated as the publisher or speaker of third-party information. For instance, a Florida woman lost her case against AOL, in which she alleged the service "allowed" a subscriber to distribute pornographic pictures of her 11-year-old son.
"Here we have a conservative Bavarian judge who decided he wanted to make an example of this individual," he said. "It underscores something we've said in this country about Internet censorship laws: Even if a law is intended to be narrowly applied, it gives a tool to the most conservative prosecutors and judges to hold people liable for material that in another setting or community would not be illegal or prosecuted."
When alerted, many ISPs do remove child pornography or pirated software, for example.
Somm's attorneys argued that he had notified authorities about the illegal materials and helped them in their investigation. Still, he was held personally accountable for the content although current law says ISPs should be in the clear if they take reasonable measures to block access to banned material.
"We are surprised and disappointed by the decision of the Bavarian local court, which appears to reflect a fundamental misunderstanding of the unique characteristics of the Internet and the role of Internet providers," AOL spokeswoman Ann Brackbill, said today.
Although he may have a chance of acquittal under the federal multimedia law passed after he was charged, observers say the conviction still sends a dangerous message.
"Undoubtedly, the availability and distribution of child pornography should be regulated, whether on the Internet or elsewhere," said Yaman Akdeniz, head of Cyber-Rights & Cyber-Liberties in the United Kingdom. "Prosecuting the ISPs would have a chilling effect on the development of the Internet within Germany and elsewhere, and prosecuting an ISP will not reduce the real-life problem of child abuse."
Reuters contributed to this report.