Friday, 16 November 2012
Should parents be responsible for their teenager's actions?
I should rephrase that as: should parents be legally responsible for their teenager's actions? As we all know, teenagers are a law unto themselves. The thought of being legally responsible for one is pretty frightening. Fortunately, yesterday the German Federal Court, der Bundesgerichtshof, handed down a decision saying that the parents of a 13 year-old file-sharer could not be held responsible for their son's infringement. Further, they could not be required to monitor or hinder his activity online. Phew.
The Bundesgerichtshof released a press release, in German, saying that the parents could not be held responsible as they had taught their son that file-sharing was illegal and had not known that their son was file-sharing.
The case was brought by various record producers who, back in 2007, found that a particular IP address was linked to the illegal download of 1,147 audio files. The IP address was traced to this teenager's family home, specifically to a computer belonging to the teenager himself. The computer was subsequently seized and the authorities found that "Morpheus" and "Bearshare" had been installed, with the "Bearshare" icon appearing on the desktop.
The record producers sued the parents of the teenager citing a violation in their duties of parental supervision, and claimed damages of €2,380.80. The district court found in favour of the record producers, and the family's subsequent appeal to the appellate court was unsuccessful. The appellate court found the parents liable for damages caused by their son's illegal file sharing because they failed to properly supervise him. The court relied on under s.832(1) BGB which says [my rough translation assisted by Google Translate]:
"Any person legally required to supervise a legal minor or a person requiring supervision due to a mental or physical condition, will be liable for any damage caused by the person subject to supervision. The supervising person is excluded from liability if he meets his duty of supervision or if the damage would have occurred had he met his duty of supervision."
The appellate court said that the parents should have installed a firewall and security program, and that they could have seen by checking the computer that their son had installed file-sharing programs.
However the Bundesgerichtshof found yesterday that given that the parents had taught their son that file-sharing was illegal, they had met their "parental obligation to supervise a normally developed 13-year-old child". They were not required to go so far as to monitor or obstruct their son's use of the internet nor to conduct checks on the computer. The court held that such measures would only be required if parents had reasonable grounds for suspecting their child of infringing use.
Of course this raises the question of how much any parent knows about what their teenage child does on a computer but overall this seems to be the right decision. Parents should teach their children the do's and don't of the internet but cannot, practically, be required to monitor their child's every move.
TorrentFreak labels this decision a "blow to rightsholders in their quest to clamp down on illicit file-sharing". This seems a step too far; in a world where teenagers often know much more about computers than their parents do it would be unfair to make them responsible for activities that they may know nothing about.
TorrentFreak also notes that Germany is the toughest jurisdiction in the world when it comes to enforcing laws against on file-sharers, as legislation means that internet account holders are almost always found liable for activities taking place on their connections. Further, Columbia University recently noted that most people in Germany think that it is wrong to file-share (other than with friends or family). It sounds to this blogger like German law is heading in the right direction, by prioritising education and personal responsibility but clamping down on file-sharing by finding individuals liable when it has to.