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The privilege of the provider and the criminal law

The court chambers in Berlin decided in a ruling from August 25, 2014 that the principle ' privilege of the provider' is also applied in the criminal law according to article § 10 page 1 number 1 TMG. A host provider is punishable by law only in case he knows of contents, that are in any form criminally relevant, of one of the webpage hosted by him (KG, decision from August 25, 2014, Case No. 4 Ws 71/14 – 141 AR 363/14).

The person incriminated in the present case was a host provider who rented web-space for website operator. Several of his clients operated an Internet website with a right-wing extremist background. Some of them were suspected of engaging in criminal activity through the content of their websites (sedition, libel and slander). The Regional Court Berlin, contrary to the request of the Prosecutor's Office, refused to bring main proceedings against the host provider for participation of such offences. The Court Chamber Berlin dismissed the appeal of the Prosecutor's Office as unfounded. It was impossible to demonstrate that the accused was involved as accessory in the offences.

The willful intent (to be involved in the offence) can be established in the case in which the participator has knowledge of a criminal act, considers it as possible or assents and accepts (conditional intent). In the Court's view there is only willful intent of a host provider if he knows positively of the criminal acts of the webpages hosted by him.  The principles of 'willful intent' and the 'possible knowledge of a criminal act' are, as the Court stated, connected to each other in accordance with § 10 paragraph. 1 p. 1 TMG (principle of provider) which we find also in the criminal law. According to the 'principle of the provider' the provider can be liable for infringement of another's right committed on webpages hosted on his servers only if he is positively aware of such offences. The Court Chamber Berlin transferred the basic concept of the 'privilege of the provider' to the 'willful intent'. As for the principle of the 'willful intent' it was not sufficient that the person incriminated might have found contents that were in any form criminally relevant when checking the clients' webpages. It was recognised that the person incriminated had no positive knowledge of any criminal act.