Failure to provide adequate instruction results in parental liability!

What are the requirements for adequate instruction of minor children regarding illegal file-sharing? The Federal Court of Justice (BGH) dealt with this issue in the summer. We summarise below the key information from the judgment "Tauschbörse II".

In the second of three file-sharing cases decided by the BGH this year (we reported), the Internet connection of the defendant was also used by her 16-year-old son and her 14-year-old daughter.

The connection holder claimed to have instructed the children about the unlawfulness of participation in music file-sharing networks on the Internet.

The daughter had admitted the violation in police interrogation and subsequently testified before the Regional Court (LG) that the mother had generally laid down rules for "proper behaviour". The daughter did not confirm any concrete instruction regarding the unlawfulness of file-sharing networks.

The court's decision on the instruction of minor children

On the basis of the admissible confession of the daughter of the defendant connection holder, the BGH confirmed with judgment of 11.06.2015 – Az. I ZR 7/14 the view of the appellate court that the mother had breached her duty of supervision. The mother is therefore liable in this case as the perpetrator for the violation of rights.

The duty of supervision of parents with parental responsibility results from the Bürgerliches Gesetzbuch. If parents breach their duty of supervision, this can, as in this case, have far-reaching consequences.

Parents can protect themselves from liability if they can demonstrate that they have fulfilled their duty of supervision. Generally, parents are obliged to supervise their minor child's use of the Internet. However, for a normally developed child who follows their fundamental commands and prohibitions, it is sufficient to instruct the child about the unlawfulness of participation in Internet file-sharing networks and to prohibit such participation. Only if there are concrete indications that the child is acting contrary to the prohibition are parents obliged to monitor the child's use of the Internet.

Liability would have been excluded in this case if the mother had instructed her daughter about the unlawfulness of participation in illegal file-sharing. However, according to the court's view, no adequate instruction by the mother took place. According to the court's opinion, general rules on "proper behaviour" are not sufficient for proper instruction.

The amount of the damages claims was also confirmed. The BGH had no objection to damages for file-sharing in the amount of EUR 200.00 for each of the music files made available for download.

Conclusion

This case law disadvantages parents who have no knowledge of the subject matter whatsoever and therefore cannot provide adequate instruction. In any case, parents should expressly instruct their children that participation in Internet file-sharing networks is unlawful and issue a prohibition on participation. By doing so, they can avoid liability if the child nevertheless acts contrary to the prohibition.