Secondary burden of proof regarding the internet connection holder

The internet connection holder warned about illegal file sharing bears a secondary burden of proof in the proceedings. However, how far-reaching is this secondary burden of proof? We summarise below the key points regarding the judgment "P2P Network III".

In the 3rd P2P network case (we reported) at the time of the infringement, in addition to the internet connection holder, his wife and his two sons, then aged 16 and 20, were living in the same household.

The defendant internet connection holder had disputed the accuracy of the investigations conducted by the software company. The investigation error was obvious, he argued, because he had been on holiday with his family at the alleged time of the infringement. Before leaving for holiday, the family had even disconnected the router and computer from the power supply, so that the family's internet connection could not be used in their absence. Therefore, no infringement could have been committed.

Court's decision on the secondary burden of proof

The BGH decided with Urteil vom 11.06.2015 – Az. I ZR 75/14 against the father of the family.

The Court of Appeal's view was confirmed. After examining a representative of the software company and the defendant's family members, the OLG Köln had found it proven that the music files had been offered for download from the defendant's computer. The Court of Appeal did not believe that the family had been on holiday at the time in question, because they had exhibited notable gaps in memory and their statements had partly contradicted each other.

In its judgment, the BGH establishes that the internet connection holder bears a secondary burden of proof. The internet connection holder does not satisfy this secondary burden of proof merely by making a blanket assertion of the theoretical possibility of access by third parties living in his household to his internet connection. It must be set out whether and, if applicable, which other persons had independent access to his internet connection and could therefore be considered the perpetrator of the alleged infringement. Moreover, to the extent reasonable and appropriate, the internet connection holder is also obligated to conduct investigations and to communicate what knowledge he has thereby acquired concerning the circumstances of any potential infringement.

The level of 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

Still disputed is how far the secondary burden of proof of the internet connection holder extends and to what extent investigations are reasonable for the internet connection holder. In any case, it is not sufficient merely to assert that there existed the theoretical possibility of access by third parties living in the household of the internet connection holder to the internet connection.