Criminal liability for the transfer of data in international networks — new challenges for the internet — part I

Abstract

The German preliminary investigations instituted at the end of 1995 againstseveral service providers In the Internet for the dissemination of pornography and national-socialist ideology, which have attracted attention throughout the world, have brought to the public eye the fact that new technologies create new possibilities for misuse and that a number of unsettied legal questions exist. The discussion caused thereby focuses on the question reviewed and examined below as to whether the operators of computer networks are criminally liable for the data disseminated by other persons. The following paper to be published in several parts in CLSR will first of all describe the economic and legal problems involved. Following this, in Part II the relevant technical background, the possibilities for misuse as well as control measures are discussed which the law may reasonably request from the parties involved on the internet. Since the question of criminal liability of service providers for the control of data transfer is completely unsettied, Part III analyses how far comparable ‘data intermediaries’ (e.g. print media, radio and television) are responsibility for the transfer of information under civil and criminal law. Based on these traditional precedents, Part IV then deals with the crucial question of whether the applicable German criminal law can substantiate the respective responsibility of service providers. The final section Part V summarizes the findings and results and outlines the development of alternative solutions.