Felix Somm, the erstwhile general manager of CompuServe Gmbh, was convicted last year by the Bavarian court of making available child pornography to German citizens. The offending images resided in the USEnet newsgroups rather than on the main body of the Internet, the World Wide Web. Many of these newsgroups – set up originally for scientists to exchange ideas by mail – are now utilised for less edifying purposes. Anonymous participants post images to newsgroups for other like minded individuals to download.
Most ISPs provide access to newsgroups as part of their service. Further, such newsgroups are commonly hosted on proprietary newsgroup, rather than web, servers which act as spiders (each news server automatically copies all the newsgroups on any other news server). The functionality inherent in news servers can pose liability problems for ISPs, particularly in areas of civil liability (defamation and copyright infringement) and in areas of criminal liability (obscene material). The key question for ISPs is whether the offending material is within (or deemed to be within) its own control.
The German court’s decision to reverse Mr Somm’s criminal conviction was made on a number of grounds, not least that he had done all he could to prevent the dissemination of such material in Germany. Indeed Mr Somm’s original prosecution was viewed by many commentators as an attempt by the Bavarian authorities to “set an example” as regards child pornography in the aftermath of the Doutroux murders in Belgium.
It should be noted that in recent months the English courts have considered a similar issue, relating to defamatory material in a newsgroup (the Godfrey case). In this case the judge declared that the ISP did have the ability to control the content on its own news server and further, any innocent dissemination defence was lost after the ISP was put on notice about the offending material.
So despite the good news from Germany after a rather invidious prosecution, the message in the UK is that if you are hosting newsgroups on a news server, then be on the lookout.