Constitutional complaint regarding disclosure of family internet usage in filesharing cases

Press Release No. 25/2019 of 03 April 2019

Order of 18 February 2019
1 BvR 2556/17

The fundamental right to respect for family life under Art. 6(1) of the Basic Law (Grundgesetz – GG) does not stand in the way of the requirement in civil procedure law that registered users of an internet connection disclose which family member used the connection in cases of copyright infringement. In an order published today, the Second Chamber of the First Senate did not admit for decision a constitutional complaint lodged by parents against court decisions ordering them to pay damages and to reimburse the costs for a cease and desist letter. The parents knew which of their children had made the music files in question publicly available in breach of copyright law, but did not disclose their knowledge in the civil proceedings. While a right not to incriminate family members does follow from Art. 6(1) GG, this fundamental right does not afford protection against the negative procedural consequences of non-disclosure.

Facts of the case:

As a married couple, the complainants were jointly registered users of an internet connection. Their internet connection was used to make a music album available for downloading from an internet exchange via so-called file-sharing software. The plaintiff in the initial proceedings (hereinafter: the plaintiff) holds the exclusive rights of use for the music concerned. Following the plaintiff’s demand that the complainants refrain from infringing its copyright, the complainants undertook to cease and desist, but refused to pay damages or legal fees. They claimed that they had not used their internet connection at the time in question; while they knew which of their children had used the connection, they did not want to disclose who it was. The Regional Court (Landgericht) ordered them to pay damages and reimburse the out-of-court legal fees related to the copyright infringement. The appeal and the appeal on points of law against the decision were unsuccessful.

Key considerations of the Chamber:

The challenged decisions’ interpretation of the law does not violate the complainants’ fundamental right to respect for family life under Art. 6(1) GG.

1. The decisions interfere with the scope of protection of Art. 6(1) GG, which grants families special protection by the state and which also covers the relationship between parents and their adult children. This fundamental right entitles family members to freely shape their family life when taking responsibility for and taking care of their family.

2. However, the interference is justified. The interpretation of the relevant legal provisions – § 97(2) first sentence, § 85(1) of the Copyright Act (Urheberrechtsgesetz – UrhG) in conjunction with § 138 of the Code of Civil Procedure (Zivilprozessordnung – ZPO) – by the Federal Court of Justice and by the lower courts does not violate the complainants’ fundamental right under Art. 6(1) GG. In its capacity as the copyright holder, the plaintiff can invoke the protection of Art. 14 GG. This right also has significant weight when balancing the conflicting fundamental rights.

In balancing the protection of property rights against the protection of the family, the regular courts satisfied the constitutional requirements. According to the case-law of the Federal Court of Justice, it is for the applicant to allege and prove the infringement of copyright. To dispel the general assumption that the complainants, as the registered users of the internet connection, committed the infringement, they must disclose what they know about the circumstances of any possible infringement and also reveal their knowledge regarding which of their children committed it. This balancing sufficiently accommodates the requirement to achieve maximum equilibrium between conflicting fundamental rights of equal weight (praktische Konkordanz) and lies within the margin of appreciation of the regular courts. In their interpretation of § 138 ZPO, the regular courts sufficiently took into consideration that the fundamental rights affected by the decision permeate the entire legal order (Ausstrahlungswirkung).

Civil procedure law provides for protection against self-incrimination. A party’s duty to be truthful is limited to the extent that they cannot be compelled to disclose having committed an unlawful act. The same may apply to the incrimination of close family members. However, the parties to – and other participants in – the proceedings that are protected against self-incrimination can be expected to bear the risk of an assessment of fact that is unfavourable to them. Constitutional law does not call for more extensive protection. Rather, appropriate consideration must also be given to the enforcement of fundamental rights by the courts – in this case, the ancillary copyright of the rights holder following from § 85(1) first sentence UrhG which is protected under Art. 14 GG.

The Federal Court of Justice takes into account the fact that it is generally impossible for copyright holders enforcing their rights in file-sharing cases to make submissions or provide evidence on how an internet connection was used, given that this information is out of their reach. The Court thus takes into account the interest of the plaintiff, as the holder of an ancillary copyright protected by Art. 14 GG, to effectively enforce their copyright against unauthorised exploitation. At the same time, the Court limits intervention in the complainants’ family life as family members enjoy special protection not to be compelled to incriminate one another when it cannot be established who has committed a given act. Rather, if family members do not satisfy the requirements of the secondary burden to present facts and evidence, they only face the risk of an unfavourable assessment of fact. Allowing families the possibility of avoiding tensions or keeping relations secret – at least in public – by remaining silent in court proceedings, conversely, does not result in an exclusion of liability – i.e., avoiding procedural consequences – when family members make use of this option. The actual “choice” to disclose internal family knowledge or to remain silent in civil proceedings, which is granted in light of Art. 6 GG, does not take precedence over ancillary copyright protected by Art. 14 GG when it comes to the assessment of fact. The protection of the family is not intended to allow persons to circumvent, for tactical reasons, their own liability for the infringement of intellectual property rights. The mere fact that registered users of an internet connection live together with family members does not automatically exclude them from liability. Under the Constitution, it is irrelevant that the complainants suggest that there are better solutions for balancing the legal interests of the holders of intellectual property rights and their users that are more consistent with civil court decisions made in similar cases,. There was no need to decide here whether it would also have been justified to impose on registered users of internet connections the duty to investigate and inquire in respect of potential infringements.

3. The EU fundamental rights do not warrant a different conclusion. In particular, EU law does not from the outset stand in the way of applying the fundamental rights laid down in the Basic Law to the case. These remain applicable where European Union law does not determine specific outcomes. In consequence, to the extent that the Member States have leeway in respect of implementation, the regular courts are bound by the fundamental rights laid down in the Basic Law also within the scope of application of the Copyright Directive and the Enforcement Directive. This is the case for the enforcement of claims under copyright law in accordance with civil procedure law, which is not harmonised throughout the EU. The case-law of the Federal Court of Justice is perfectly in line with the requirements arising from EU law and the case-law of the European Court of Justice.