Presumption rule in file-sharing cases does not apply to de facto connection holder

It is common knowledge that the holder of an internet connection is subject to a presumption: in the event of an infringement committed via their connection, it is presumed that they committed it. However, according to the opinion of the Local Court (AG) Munich, this does not apply to the "de facto" connection holder.

In an oral hearing before the Local Court (AG) Munich on 21.10.2013, the responsible judge expressed himself clearly on this matter.

In the case at hand, the factual situation is such that the connection holder can argue that the connection is shared and she uses the telephone connection jointly with her husband only. The internet connection is used exclusively by their joint (adult) son in a separate flat in the same house.

The court initially regards this submission as sufficient to rebut the presumption against the connection holder and to satisfy the secondary burden of pleading. It is now incumbent upon the claimant to prove that the infringement was nonetheless committed by the holder of the connection, which is practically impossible, especially given that it concerns an 80-year-old lady who has never been on the internet in her life.

And this favourable situation for the defendant is not changed even if the claimant – as here – simply also sues the son named as a witness, because according to the submission exonerating the connection holder, he would be the only one to be considered as the perpetrator. However, since the son is formally not the connection holder, the presumption of authorship does not apply to him either. In this relationship too, the claimant must consequently prove that the infringement was committed by the defendant.

As a result, this insight offers excellent opportunities to respond to file-sharing claims without putting the "accused" joint users of the internet connection in serious difficulties.