File sharing: Parents are not liable for children!

The account holder is neither liable as perpetrator nor as tortfeasor for the illegal file sharing of a minor if he has instructed him beforehand.

The holder of an Internet connection was accused by the rights holder of a computer game of offering an illegal copy of the game in an Internet file-sharing platform. After issuing a cease-and-desist declaration with a penalty clause, further claims were rejected. The rights holder has now pursued these claims in court.

The parties were agreed that the account holder did not commit the infringing act herself. However, the rights holder took the view that the account holder was liable for the behaviour of her daughter, who was a minor at the time of the infringement, and her friend, as she had not sufficiently instructed them.

Both the daughter, who has since reached the age of majority, and her (ex-)friend were examined by the court. Both confirmed consistently that the account holder had permitted them to use the Internet. However, she had also repeatedly prohibited them from "doing anything illegal on the Internet". Both disputed that they themselves had engaged in illegal file sharing.

Court decision – No liability of the mother

By judgment of 15.03.2017 (AZ: 4 C 2593/16), the Local Court (AG) Stuttgart denied the liability of the account holder.

The account holder had neither breached a duty of supervision towards her daughter nor was she liable as a tortfeasor on account of a breach of duty of conduct towards her daughter's ex-friend.

Parents regularly fulfil their duty of supervision by instructing the child about the unlawfulness of participation in Internet file-sharing platforms.

Although the court assumed that the account holder had not explicitly issued a prohibition regarding the use of "illegal file-sharing platforms" towards both children, this did not constitute a breach of the duty of supervision.

It is not reasonable to expect the person responsible for supervision to go into detail on all matters. It appears more purposeful and educationally appropriate to clearly and explicitly state that any illegal acts on the Internet will not be tolerated and are forbidden by the parents. This applies in particular in the case of a 15-year-old adolescent who, if in doubt, is more knowledgeable about the Internet than his parents.

Furthermore, the court also considered the duty to instruct the daughter's ex-friend to be fulfilled. It should be noted that the ex-friend was just before reaching the age of majority at the time of the infringement. For this reason too, the account holder had no further duty to instruct or monitor the daughter's ex-friend.

Conclusion

In this judgment, the court extensively addresses the scope of the instruction to be given to minors in file-sharing cases. What is particularly noteworthy about this is that it involved not only the account holder's own child, but also her minor friend. In both cases, the court considered the instruction given to be sufficient. Since the judgment is not yet final, it remains to be seen whether it will be upheld.