Last week in Munich, Judge Wilhelm Hubbert of the Bavarian District Court decided Felix Somm, former CompuServe manager, had "abused" the Internet and had allowed access to child pornography during 1995 and 1996. Hubbert's ruling rocked both legal and Online experts who had called for Somm's acquittal.
AOL, CompuServe's owner, made it known it was, "Surprised and disappointed by the decision of the Bavarian local court, which appears to reflect the fundamental misunderstanding of unique characteristics of the Internet and the role of Internet service providers. The decision of the court was especially surprising in light of the fact that the prosecutor ultimately agreed with the defense that it was not feasible for Mr. Somm to prevent the distribution of the material." In fact, on the final day of the trial, the prosecution made a motion for acquittal.
Instead of an acquittal, Hubbert slapped Somm with a two-year suspended sentence and fined him 100,000 marks ($56,600). As soon as the decision was announced, Hans-Werner Moritz, Somm's attorney, filed a motion to appeal. On Wednesday, the prosecutors called for a reversal of Hubbert's decision when they filed an appeal, stating the technology needed to block banned Internet content was unavailable in 1996.
"This means the prosecutor isn't going to just let the decision stand," stated Moritz. "We are very confident and we very heartily welcome this motion by the prosecutor.... I think the decision will be overturned. It has to be. The judge put forward a decision that is completely wrong."
However, the appeals process is on hold until Hubbert's written decision, due by the end of June, is submitted. Moritz can appeal to either the district court based on Hubbert's reading of the law and the case facts or he can appeal to superior court on legal grounds alone. "We haven't decided which way we will go but it will probably be the superior court," said Moritz. In fact, due to the new multimedia law, he feels the case should never have gone to trial.
The multimedia law was passed in Germany last August. This law releases Internet providers from liability for illegal material if they had taken reasonable steps to block the content and if they had the technology to block it.
Many have viewed Somm's case as a test of efforts to police Internet content. Bavaria is especially aggressive and has a unit of policemen whose daily assignment is to surf the Net looking for banned materials such as child pornography, violent porn and Nazi literature.
In the meantime, Somm must wait for his new day in court.
