FRANKFURT, Germany -- The former CompuServe manager convicted in a key Internet pornography case by a conservative Bavarian court believes the decision, which went against the prosecutor's last-minute request for acquittal, will be overturned.
Felix Somm said Thursday's ruling was wrong and agreed with others who have said the case could hurt the development of the Internet and online businesses in Germany, including his own.
"I am 100 percent confident," Somm said in a telephone interview. "The prosecutors in the end agreed with us. All the experts supported us. [The decision] is not in accord with the law."
Judge Wilhelm Hubbert gave Somm a two-year suspended sentence and fined him DM100,000. Hubbert concluded that Somm "abused" the Internet and allowed child pornography to be accessible in Germany when he was head of CompuServe's German division in 1995 and 1996.
The Somm case been closely watched as a key test in efforts to control Internet content. The decision was greeted with disbelief by experts who say it is impossible to ban material that can be stored on any of the millions of computers connected to the Internet in countries around the world.
"An international company, CompuServe, has had its employees subject to the criminal laws of Germany," said Barry Steinhardt, president of the Electronic Frontier Foundation. "There will be a fear among many Internet service providers of doing business there and a fear that they're going to be subjected to a variety of national laws."
Prosecutors sided with Somm
After hearings over the past four weeks, even prosecutors agreed with the defense that Somm was not liable under a multimedia law the German parliament passed last August.
The law says that Internet access providers like CompuServe are not liable for illegal content if they do not have the technology to block the material.
When the investigation began in 1995, CompuServe blocked access to 200 Internet sites with child and animal pornography as well as Nazi literature, which is also banned in Germany.
Prosecutors concluded that appropriate blocking technology was not available in 1996, but the judge ignored their motion for dismissal. "Even on the Internet there can be no law-free zones," he said in his decision.
Somm was supported in the case by several Internet and legal experts, and said support has swelled since the decision reverberated throughout cyberspace. He has received scores of email from around the world, while an online petition has been set up to collect signatures calling for a reversal.
"I feel pretty good about that," he said.
At the same time, Somm said the case has been a burden to him and his family since the charges emerged in April 1997. "It has been very hard for me and for my parents to see my name connected with something like child pornography," he said.
It has also weighed on his new company, Somm.com, an electronic commerce consulting firm, which he started after leaving CompuServe Deutschland, which is now owned by America Online, in July.
His attorney said Somm.com, which offers software to create virtual communities, has missed out on some contracts and business partnerships because of the case.
"I don't think [clients or partners] say so openly, but the case hangs over things," Somm said.
A chilling effect forecast
If the ruling stands, Somm said other online providers or ecommerce companies could be hurt as well, as many experts have maintained.
"All providers must be concerned and nervous to see what happens," Somm said.
America Online said it was "surprised and disappointed" by the verdict, which it said "appears to reflect a fundamental misunderstanding of the unique characteristics of the Internet and the role of Internet providers."
Somm's attorney, Hans-Werner Moritz, said it would take six to 10 weeks to decide whether to appeal the decision to the Bavarian state court or to another German appeals court.
Meanwhile, the European Commission today called Somm's conviction surprising and said it highlighted the need for global cooperation on how to regulate the Internet.
"The legislation on this subject, when it exists, is different in the different countries of the world," spokesman Jochen Kubosch told a news briefing, noting that it seemed to contradict German law. "So it would be very useful to coordinate a little and should be one of the subjects covered by the charter."
The European Commission has promised to propose legislation this year on the liability of online service providers for content carried over their networks in areas such as obscenity, defamation, privacy, and misleading advertising.
But the EU so far has promoted industry self-regulation and filtering technology as the best way to control Internet content that is illegal or harmful to children.
