D: German Federal Constitutional Court (BVerfG) on searches of premises occupied by operators of internet forums

During prosecutions for copyright violations on the Internet, there have been repeated instances of apartments and houses being searched by the criminal prosecution authorities. This often affects forum operators, since forum members publish links to material that might infringe copyright in the forums. The Federal Constitutional Court (BVerfG) has now commented on such a case.

Users had posted links in the internet forum of the affected operator that prima facie pointed to material infringing copyright. The postings stated that movies or programmes were hidden behind the links. The links led to servers outside the forum. In December 2007, Amtsgericht (Municipal Court) Augsburg ordered a search of the apartment, the business premises, and the vehicles of the affected person; two computers were seized during the search. The complaint by the affected person was rejected by the Landgericht (District Court) Augsburg on the grounds that even though they were links provided by third parties, these might have been posted on the forum with the knowledge of the affected person. This question, and whether the relevant works were actually protected by copyright, was supposed to be clarified by the search order. The office of the district attorney discontinued the preliminary investigation in June 2008.

The constitutional complaint by the affected person against the search was successful. As the German Federal Constitutional Court stated in its decision of April 8, 2009 (file ref. 2 BvR 945/08), this search constitutes a violation of section 13 para 1 and para 2 GG (German Basic Law) (inviolability of the home).

The severity of the intrusion that such a search represents is such that there have to be reasons for suspicion that exceed merely vague indications and assumptions. There must be plausible reasons sufficiently based in fact. Even this seemed doubtful to the Federal Constitutional Court . It stated that there were no concrete indications in the decisions of the Municipal Court and the District Court that the affected person was in any criminally relevant way responsible for the publication of the links. In fact, each potential forum user was to be considered a putative perpetrator, since the links had been published directly in postings. Neither were there any indications of deliberate action on the part of the forum operator. It was not set forth that he had taken notice of or actually approved the links. Noteworthy indications of such notice or approval might be the frequency of links to works protected by copyright or previous warnings to desist by copyright owners.

Furthermore, other less drastic investigation methods should initially have been undertaken prior to the search (so-called necessity) in order to substantiate the suspicion of a criminal offense that was weak at best. The fact that these measures would not have resulted in an immediate complete clarification was to be accepted in view of the seriousness of the intrusion that a search represents.

For companies that operate discussion forums on the Internet, this judgment shows that it is not necessary to simply tolerate measures taken by legal authorities that are very quick to hand out search orders, but that it can, in fact, be worth going to the courts to have the matter reviewed. According to this decision by the German Federal Constitutional Court , municipal and district courts can no long make it so easy for themselves when reviewing search orders and appeals against them.

At the same time, it has now also been made clear that not every publication of a link to works that might be protected by copyright by a forum user may lead directly to a search and possibly even confiscation. However, to dispel the appearance that notice is being taken or approval is actually given, the forums should be regularly checked for such links and suitable measures taken if an occurrence is detected.