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Internet Service Provider Liability

By Dr. Katharina Scheja
The liability of an Internet service provider ('ISP') is one of the topics that has been vigorously disputed and discussed in Germany. And given the lack of borders in cyberspace, the outcome could impact e-commerce vendors in the United States and elsewhere.

One of the first decisions in these matters, the CompuServe judgments of the Munich Court of First Instance and the Court of Appeals, received widespread attention (AG M nchen NJW 1998, 2836; LG M nchen I NJW 2000, 1051; comments on the judgment: Hoeren, NJW 1998, 2792; K hne, NJW 1999, 188; Koenig/Loetz, CR 1999, 438).

The case discussed the possibility of criminal liability of CompuServe's German general manager for pornographic content that was accessible through the Internet access points of CompuServe. After first having blocked the content following a notice served by the public authorities, CompuServe again allowed access to the newsgroups with offending content. Accordingly, the Court of First Instance found that the general manager had violated obligations to prevent illicit activity and, thus, had to be convicted according to the German criminal code. The penalty was released on license. The Court of Appeals remanded the case and acquitted the German CompuServe general manager (LG M nchen I NJW 2000, 1051; comments on the judgment K hne, NJW 2000, 1003; Moritz, CR 2000, 117).

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