Projecting Images of Families into the Law—the Example of Internet-Related Cases Decided by the German Courts

Abstract

Family and Internet may appear to be an “unlikely combination,” since technology is generally considered to be neutral and thus not gender-related, even if a clear gender imbalance can be observed among computer science students and professionals who are largely male. From the point of view of the networked structures of the Internet, and hence from the point of view of Internet law, no fundamental distinction is made between family and non-family relationships and connections. Despite this, it may be worthwhile to search legislation and case law for existing rules and decisions that discuss issues of families and their members who use the Internet.

1 Introduction

Family and Internet may appear to be an “unlikely combination,” since technology is generally considered to be neutral and thus not gender-related, even if a clear gender imbalance can be observed among computer science students and professionals who are largely male. From the point of view of the networked structures of the Internet, and hence from the point of view of Internet law, no fundamental distinction is made between family and non-family relationships and connections. Despite this, it may be worthwhile to search legislation and case law for existing rules and decisions that discuss issues of families and their members who use the Internet. In other words, to focus on areas in which the use of the Internet by family members or within the family circle raises legal issues. Of course, such issues are not all that numerous, since intra-family relations are an area of the private sphere which is particularly protected against state regulation and legal interference.

Nevertheless, as scarce as these legal issues—and hence court decisions that deal with them—may be, the present contribution works on the assumption that the way in which conflicts at the interface of family and Internet are described and resolved in the respective argumentation found in court decisions openly or at least implicitly reveals something about the image of the family on which the courts base their decisions.

Such an approach, however, meets with a major difficulty under German law. The reason is that is a stark contrast to a judge in an Anglo-American-influenced legal system, who—particularly when it comes to decide cases under common law—is accustomed to expressing his or her own views in the judgment at some length. Moreover, the individual personality of the deciding judge, and hence the subjectivity of his or her decision, is highlighted whenever a decision handed down begins with the formulation “I, Judge So-and-so, am of the opinion that […]”. German judges, however, do not decide cases as individuals in their own name. Rather, they speak as an institutional body (“the court”) and, even this institutionalized body does not speak for itself, but “in the name of the people” (Im Namen des Volkes). With this self-understanding, it goes hand in hand that German courts are less concerned with the further development of the law by expressing a personal legal opinion than with finding the answer to the legal issue in question—which is already contained in the statutory rules which merely need to be interpreted to be applied to the facts of a given case. In comparison to English judgments, German courts therefore write in a comparatively abstract and less elaborate manner. Hence, other than in English judgments, from which passages close to life can often be quoted verbatim, the pre-legal images German judges have of the family and its members when deciding cases at the interface of family and Internet can only be inferred in an indirect and subjective way from the comparatively scanty sentences of the judgements’ reasoning.

Having said these methodological remarks, mainly three groups of cases can be identified which will be examined in more detail in this contribution. The first of these three groups of cases concerns the liability of the owners of a family Internet connection for infringements of third-party rights—mainly copyright—committed by one of the family members. This mainly raises the issue of the scope of the information and control obligations, which the courts impose on the owner of the Internet connection vis-à-vis his or her family members, i.e. vis-à-vis spouse and children (2.). The second group of cases deals with the legal framework for acting as an influencer, who often is still underage at the start of his or her career (3.). Finally, the third group of cases centers around state measures designed to protect the best interests of children in dealing with and being affected by the Internet (4.).

As a final preliminary remark, it should be noted that what follows is not a comprehensive analysis of the subject matter just outlined. Rather, some exemplary court cases and decisions will be selected to demonstrate how the courts are defining family structures and the role of family members when they decide cases that involve actions of family members in connection with the Internet.¹ Likewise, a complete review of legal literature on the subject discussed here, would go beyond the scope of this article. Nevertheless, it is hoped that the following discussion of these exemplary cases may entail both a more comprehensive study of national law and a comparative analysis of different national jurisdictions—and thereby shed additional light on the interplay between non-legal and mostly sociological ideas of families and their members on the one hand, and legal rules on the other.

2 Liability of the Owner of an Internet Connection and Parents’ Duty to Supervise their Children

The factual scenario with which the courts are confronted when assessing the liability of the owner of a family Internet connection—either one or both parents—for acts committed by another family member, —usually a child who is often a minor, but also sometimes a partner. The owners of copyright or related rights have learned through an Internet service provider, or through participation in file-sharing networks, that files of their music sound recordings or audiovisual works have been unlawfully offered for file-sharing from a computer via a certain Internet connection.² The rights holders then issued a warning to the subscriber, requested a cease-and-desist declaration with a penalty clause, and demanded compensation for the costs incurred for the warning as well as for damages for the unauthorized use of their copyrighted works in the context of the public Internet file-sharing platform.

2.1 Legal Liability Rules

The obligation to pay damages for copyright infringement is established in Section 97 (2) of the German Copyright Act (Urheberrechtsgesetz, UrhG) which provides that “[a]ny person who intentionally or negligently performs such an act shall be obliged to pay the injured party damages for the prejudice suffered as a result of the infringement”.³ If the owner of the connection has committed the infringement him- or herself, he or she is, of course, liable as the infringer. In addition, under German civil law, whoever infringes someone else’s copyright must reimburse the infringing party for the cost incurred for sending a private cease-and-desist warning notice (so-called Abmahnung).⁴ The owner of the connection may also be liable if he or she is aiding or abetting another person’s copyright infringement. However, the mere provision of the Internet connection is not enough cause for this sort of liability, since liability, as an instigator or accessory, requires knowledge of the specific infringement(s) which result from the aiding or abetting activity.

2.1.1 Liability of the Owner of the Internet Connection

Since in the case of a multi-person household it is regularly not possible to prove which person in the household who has access to the computer connected to the Internet has committed the infringement, the question arises as to who must bear the consequences if proof cannot be provided. The relevant rules of evidence are complicated in German law, since they try to deal with the fact, by way of a kind of ping-pong game, that according to the general principles of the law of evidence, on the one hand, the plaintiff must prove the infringement crime. But the plaintiff cannot provide this proof without information on the part of the defendant, and the defendant is not obligated to provide information according to general principles, even though he or she has or can at least find out the information that the plaintiff urgently needs in order to enforce his or her right.

The courts resolve this conflict as best they can by way of formulating evidentiary presumptions. If the copyright holder has ascertained the IP address from which the infringement occurred, an initial factual presumption exists according to which the connection owner is responsible for the infringement. This presumption exists not only if no other persons could use this Internet connection at the time of the infringement, but also if the Internet connection—as in the case of a family Internet connection—is regularly used by several persons.⁵ However, this presumption is rebutted if there is a serious possibility that a third party alone, and not the owner of the Internet connection, used the Internet access for the alleged infringement. According to the German courts, this is particularly the case if the Internet connection was not sufficiently secured at the time of the infringement or was deliberately made available for use by other family members and/or guests.

In such cases, however, case law then imposes a so-called “secondary burden of proof” on the owner of the Internet connection, i.e. the owner of the connection must state whether other persons and, if so, which other persons had independent access to his or her Internet connection and could be considered the perpetrators of the infringement. To this end, the owner of the Internet connection is obligated to make reasonable inquiries and to disclose what knowledge he or she has gained about the circumstances of a possible infringement. In this respect, the general assertion of the merely theoretical possibility of access to the Internet connection by third parties living in the household is not regarded as enough. Rather, the owner of an Internet connection must state which persons had—considering their respective user behavior, knowledge, and skills, as well as the time at which the alleged infringement took place—the opportunity to commit the infringing act in question without his or her knowledge or intervention.⁶

2.1.2 Parent’s Liability due to Violation of their Duty of Supervision

However, the situation is different in the case of underage children living in the household, who probably commit most of the copyright infringements by way of Peer-to-Peer (P2P) file sharing.⁷ This is because parents have a general, independent duty to supervise their children’s behavior. The German Civil Code (Bürgerliches Gesetzbuch, BGB) stipulates that parents are responsible for the care of the child as part of their parental custody pursuant to Section 1626 (1) of the German Civil Code, which foremost includes the duty of parents to supervise the child pursuant to Section 1631 (1) of the German Civil Code. And according to Section 832 (1) sentence 1 of the German Civil Code, which lays down the rules for the liability of a person with a duty of supervision, “[a] person who is obliged by operation of law to supervise a person who requires supervision because he is a minor or because of his mental or physical condition is liable to make compensation for the damage that this person unlawfully causes to a third party”.⁸ If the parents violate this statutory duty of supervision imposed on them by law,⁹ they are not as such personally liable for the copyright infringement committed by the child. However, they are liable to the copyright holder for the infringement of third-party rights committed by the child, provided they violated their duty of supervision. In this respect, the scope of this supervisory duty is therefore decisive.

2.2 The Family Image of the Courts

It is within the discussion of the scope of the legal liability rules just described that the courts formulate their view of family structures as well as the role of individual family members.

2.2.1 Minors

In the Morpheus-case, the most relevant case decided by the German Federal Court of Justice (Bundesgerichtshof, BGH) on the issue of the scope of parents’ duty to supervise their children, the parents had provided their children, who were 13, 15, and 19 years old and living in their household at the time, with an Internet connection. For their youngest child’s twelfth birthday, the parents gave him the father’s used personal computer, which the child in turn used to exchange copyrighted music via the P2P filesharing networks “Morpheus” and “BearShare”, offering a total of 1147 audio files and around 11.2 Gigabite of audio and video files for downloading by the others in the P2P filesharing network.¹⁰ The phonogram producers—the copyright owners of the music and the recordings—sued, claiming that although the parents might have sufficiently explained to their son how to properly behave, they certainly had not monitored their son’s compliance with these rules of conduct. After all, they argued, the parents had not noticed that their child had downloaded the two P2P filesharing programs, although the icon of the program “BearShare” was visible on the personal computer’s desktop.

Both the Court of First Instance and the Court of Appeals ruled in favor of the plaintiffs and ordered the defendant family father and owner of the Internet connection to pay to the plaintiff damages for illegal use of copyrighted music, and to reimburse the cost incurred by the plaintiff when sending their warning notice.

The BGH, however, held that “parents regularly fulfill their duty to supervise a normally developed 13-year-old child who follows their basic rules and prohibitions by informing the child about the illegality of participating in Internet file-sharing networks and prohibiting the child from doing so. In principle, parents are not obliged to monitor the child’s use of the Internet, to check the child’s computer or to (partially) block the child’s access to the Internet. Parents are only obliged to take such measures if they have concrete indications that the child is violating the prohibition”.¹¹ Without addressing the issue of the scope of the information required in more detail—although the child was quoted as saying he “didn’t know it was that bad” and that he “could not imagine being caught at all”—the court only addressed the issue of the scope of the parents’ duty to supervise a child whom they had duly informed about what was and what was not allowed when using the Internet.

Explaining this holding, the BGH stated that “[a]ccording to the established case law of the Federal Court of Justice, the degree of supervision required is determined by the age, nature and character of the child and by what can be expected of those responsible for supervision in their respective circumstances”.¹² Moreover, other than the Court of Appeals, which had required that the parents review their child’s desktop and installed programs on a monthly basis, the German Federal Court of Justice was of the opinion that “the requirements for the duty of supervision, in particular the duty to instruct and supervise children, depend on the foreseeability of the harmful behavior. In this context, the extent to which general instructions and prohibitions are sufficient or their observance must also be monitored depends mainly on the child’s characteristics and his or her compliance with educational measures”.¹³ In general, the Federal Court of Justice went on, although “it cannot be disputed that experience has shown that children and young people occasionally violate prohibitions imposed for educational reasons”,¹⁴ this “does not imply an obligation on the part of parents to regularly monitor whether their child is complying with the prohibitions imposed on it when using the computer and the Internet without any specific reason,” or “to (partially) block the child’s access to the Internet”. This is particularly true, the Court continues, if the child is a normally developed, insightful, and behaviorally non-disruptive 13-year-old. Rather, “parents regularly satisfy their duty to supervise a normally developed 13-year-old child who obeys their basic commands and prohibitions by instructing the child about the illegality of participating in Internet file-sharing networks and prohibiting him or her from doing so”.¹⁵

In this way, the BGH implements the fundamental rights’ requirements of the German Constitution (Basic Law; Grundgesetz, GG). According to Article 6 (2) sentence 1, the “care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them”.¹⁶ With similar wording, Article 7 of the Charter of Fundamental Rights of the European Union declares that “everyone has the right to respect for his or her private and family life, home and communications”. In formal terms, the wording, especially of the German Grundgesetz, clearly indicates the natural law basis of the fundamental rights. At the same time, the content of parental rights is intended to guarantee the sphere of freedom of parents, in which parents can care for and raise their children according to their own ideas, free from state influence.¹⁷ Furthermore, the provision expresses a general value decision in favor of the child’s upbringing in the parental family circle.¹⁸ Consequently, “parents should take into account the child’s growing ability and need to act independently and responsibly when caring for and raising the child”.¹⁹ Thus, placing great emphasis on the child’s learning curve and respecting the child’s personality as expressed by his or her own decisions, the Federal Supreme Court propagates the educational goal of promoting “the child’s growing ability and need to act independently in a responsible manner”.²⁰ If the child is allowed to make mistakes, the consequences of which are ultimately borne by the copyright holders, the social costs are ultimately imposed on third parties and thus on society as a whole.

2.2.2 Adult Children and Spouses

In such cases, however, it is not just a question of minors, but also of adult children and spouses of the owner of the Internet connection living in the same household. Unlike in the case of underage children, the question of legal liability is not about the breach of a duty of supervision, but about the circumstances under which the owner of the Internet connection can rebut the presumption that he or she, as the owner of the connection, committed the infringement to escape his or her own liability as the infringer.

As stated above,²¹ the owner of an Internet connection must disclose the names of those who, given their user behavior, knowledge, and skills, had the opportunity to commit the infringing act without his knowledge or intervention. Again, the aim is to reconcile the protection of the family with the protection of intellectual property. As likewise stated above,²² the fundamental rights under Article 7 of the EU Charter of Fundamental Rights and Article 6 (1) of the German Basic Law protect undisturbed marital and family cohabitation from interference by the state. These fundamental rights oblige the state to refrain from interfering with the family and entitle family members to freely shape their community inwardly in family responsibility and respect.²³ The scope of the protection of the family under fundamental rights also covers the relationship between parents and their adult children.²⁴ This is not only to be observed by the state in the course of its legislation, but also by the courts in the course of interpreting simple statutory law.²⁵

In view of this strong protection of the family against state intervention, the German Federal Court of Justice concluded in a recent decision that the protection of intellectual property, which is also protected by fundamental rights both under Article 17 (2) of the EU Charter of Fundamental Rights and Article 14 (1) of the German Basic Law, cannot justify imposing far-reaching obligations to investigate and notify on the owner of a private Internet connection in order to avert his or her liability as a copyright infringer. It is therefore unreasonable, according to the German Federal Court of Justice, to force the Internet connection owner to subject the Internet use of his or her spouse to documentation. It is also unreasonable to require the connection owner to examine his or her spouse’s computer and search for file-sharing software.²⁶ However, the owner of the Internet connection cannot, the court held, contend him- or herself by stating that the adult children had access to the computer in question. Rather, if the owner of the family Internet connection wants to divert his or her own liability, within the framework of the secondary burden of proof, he or she must name the child who admitted the infringement to the owner of the family Internet connection.²⁷ But, in the absence of concrete indications of an already committed or imminent copyright infringement, the owner of an Internet connection is generally not obligated to inform adult members of his or her shared apartment or his or her adult guests, to whom he or she provides the password for the Internet connection, about the illegality of participating in file-sharing networks or prohibit them from the illegal use of corresponding programs.²⁸

3 Influencers

3.1 A Relatively New Phenomenon

Another interesting area where family and the Internet meet in the law are the activities of influencers. The German version of Wikipedia offers the following description of influencers: “since the 2000 s, people who, due to their strong presence and high reputation in social networks, are suitable as carriers for advertising and marketing (so-called influencer marketing)”.²⁹

The rise and significance of influencers has to do with change in media usage, especially among younger consumers, who are less and less reachable by traditional advertising venues like television and print media.

Whereas at the end of the 2010 s, 42% of over-50-year-olds formed their opinions via television, only 17% of 14 to 29-year-olds did so. The difference in opinion formation via the Internet was even more pronounced. Here, while it was barely 2.5% among over 50-year-olds, it was almost 55% among 14 to 29-year-olds.³⁰ Marketing by influencers is particularly promising and consequently used especially in the topic clusters of Beauty, Fashion, Home and Lifestyle, Health and Fitness, and Entertainment.³¹ Even if this may appear gender-stereotypical, these are of interest predominantly to female followers—particularly large numbers of young women—both because of the affinity to a particular topic necessary for the success of an influencer and in view of the identification of the followers with the influencers and the para-social interaction between followers and influencers. Because of these interdependencies, influencer marketing raises not only the associated legal issues, but also questions regarding the definition of gender and traditional, outdated role models.³²

3.2 Influencer and the Courts

It should be noted, however, that for the purposes of the present inquiry, usable statements in court judgments are even sparser than in the cases dealing with the Internet connection owner’s liability for copyright infringement by family members. This is due to the fact that, from a legal point of view, the issue raised in the case of influencers is less one of roles or expectations of behavior within the family and its members, but rather a question of whether and if so under what circumstances product recommendations by influencers are to be regarded as mere announcements of personal opinion, or rather as an advertising message, which must be identified as such in accordance with the media law requirement to separate editorial from advertising contributions.³³

Nevertheless, some indications can be gleaned from the decisions regarding the role attributed to influencers by the courts. Even if it may seem a bit over-interpreted, statements by German courts reveal a certain skepticism of the judges towards the behavior of influencers. For example, a recent decision by the Court of Appeals of Braunschweig refers to an influencer as a “person describing himself/herself as an influencer” as well as to a “so-called influencer”.³⁴ Obviously, the activity of the defendant female influencer is not recognized here as a serious freelance activity. And when it is further stated that the influencers who were sued and convicted for failing to label their recommendations as advertising messages “have themselves paid for being pictured with a certain product”, this is somewhat reminiscent of the view of the courts in the imperial era before World War I—that an honorable citizen does not lend him- or herself to advertising a product with his or her personality.³⁵

Since, as explained above, in accordance with German legal tradition judgements are handed down as decisions of an institutional panel of judges rather than by individual judges, at least in their published form judgments do not indicate whether they were written by a majority of male or female judges. At any rate, however, such reservations towards the activities of the all female influencers who found themselves before the German courts, are even more surprising since particularly underage, enterprising boy inventors such as Bill Gates, who laid the foundation for his firm in his family garage at the age of 16, are consistently viewed positively in the capitalist hagiography of successful entrepreneurship. Female influencers, on the other hand, who have built up their successful business without further support, seem to be denied a comparable collective appreciation. They seem to be seen all too close to the so-called “it girls”, whose fame is not due to special intelligence or achievements that are valuable to society, but rather just to the very fact that they are famous. Apparently, it is not similarly appreciated that in a society where attention is a scarce resource,³⁶ attracting attention in the form of a great number of followers is certainly an achievement of its own right.

Surprisingly, this view, which is rather committed to a conservative value system, coincides with a more progressive feminist perspective, which tends to see the daily activities of female influencers first and foremost as an uncritical, apolitical perpetuation of traditional female role models. In addition, an anti-capitalist attitude can be identified, according to which—especially underage³⁷—female influencers appear to be in need of protection from exploitation by their parents (parent influencers using images of their underage children) and ultimately by themselves (underage influencers); selling merchandise nobody needs and creating unnecessary needs is regarded as an activity that should not be furthered but rather prevented by appropriate legislative measures. Undoubtedly, such arguments resonate reservations that the Frankfurt School in particular harbored about mass culture and the industrially produced world of goods, which was considered superfluous, and about the consumption of goods, which was considered harmful per se.³⁸ Such a view deliberately overlooks both the fact that self-marketing of underage influencers is legally permissible, and the emancipatory self-empowerment of minors who, defying the rules defining the age of majority contained in the German Civil Code, earn their own money and build up their public image. Also, even if only an extremely small number of female influencers is truly successful,³⁹ their great number of followers proves how highly the activity of influencing is to be valued.

4 Protection of the Child’s Best Interests

The third category of legal regulation and court cases in which the image of both children and families play a decisive role are those which deal with government measures to protect the best interests of children in dealing with, as well as being affected by, the Internet. This is a wide-ranging area, covering both the protection of children against outsiders—i.e., against bullying by their peers as well as against grooming by elders, mostly men, in chatrooms and similar fora—as well as against their own parents who “market” their children in diverse ways online. Although it might well be worth studying and analyzing the legal rules and issues related thereto,⁴⁰ their discussion shall be limited here to legal issues surrounding the regular use of smartphones and messenger services, such as WhatsApp, by children in their regular communication.

Two cases decided by a court of first instance particularly merit attention since they highlight some of the difficulties in properly applying existing laws to the changed social uses of digital communication devices. Both these cases deal with the use of WhatsApp by children and the resulting parental obligation of supervision and control, thus reflecting the importance of messenger services in today’s digital communication.

In the first of these cases, both of which caused quite a stir in Germany, a court ordered a single father to prohibit his underage daughter from using WhatsApp before she had reached the age of 16.⁴¹ Of course, it is one thing if the EU General Data Protection Regulation (GDPR) provides that whenever an information society service is offered directly to a child, “the processing of the personal data of a child shall be lawful where the child is at least 16 years old” but that if the child is younger, consent may be given or authorized “by the holder of parental responsibility over the child”.⁴² It is yet another thing to forbid parents to give such consent or authorization unless the child reaches the age of 16 years, and in the case of a developmentally delayed child even until this child’s 18^th birthday. A judgment which demands the latter as a general rule could hardly be more out of touch with life. A service like WhatsApp has long been an indispensable part of personal communication, not only among adults but also among children who are not of age.⁴³ Personal messages are sent via WhatsApp, which at the same time serve to construct, insure, and present the sender’s own identity to the outside world. At the same time, WhatsApp has become indispensable for planning and organizing collective actions and events even—and perhaps foremost—amongst adolescents. Moreover, from a legal point of view, the ruling mentioned does not sufficiently reconcile the protection of the child’s well-being and the protection of his freedom of action, including the child’s privacy which conflicts with any monitoring duty imposed upon the parents. It is true that parents have the right of upbringing, which justifies restricting the child’s ability to act without the child’s consent and, if necessary, even against the child’s express will. However, this does not apply without limits. A fundamental core of the child’s fundamental rights cannot be affected by the parental right to upbringing, but rather must be respected by the parents. Only if the parents fail, the state has the duty of care for the child which justifies certain restrictions of the parents’ right, if necessary, against the will of the parents. However, it should be noted that this judgment was a typical example of the proverbial “bad cases make bad law”. The case that led to the judgment was embedded in a custody dispute. The wife of an estranged couple wanted to convince the court that the father was not able to fulfill his responsibility to protect his two underage daughters from lewd and sexually harassing WhatsApp messages sent to the children by the father’s friend. In this situation, while upholding the father’s custody of the child, the court imposed a heightened duty on the father to prevent his daughter from the manifested negative consequences of using WhatsApp as a communication device.

In the second case, reported here as an example, the strict application of data protection produces a rather strange result regarding the use of WhatsApp by children and adults alike. According to data protection legislation, the processing of personal data requires the consent of the data subjects. If the access of an app such as WhatsApp to the phone directory is considered data processing, the use of this app therefore requires the consent of all those whose numbers are stored in the phone directory of the person who uses the app.⁴⁴ In fact, another lower court ordered the mother of a twelve-year-old to do just that, and further required her to first become knowledgeable in both the technology of the phone and the app.⁴⁵ If this result is already problematic for adults, it seems most unreasonable for children.

5 Concluding Remarks

Overall, it is clear how complex legal rules have become for issues affecting the family and its members in the digital sphere. This development is, of course, merely a consequence of the technological development and the various business models made possible by and based on digital technology. If this differentiation and complexity already cause problems for lawyers, parents who are not legally trained or educated, and not least the children, are not infrequently confronted with questions and problems that they can hardly solve themselves. Like all social institutions, families are also being sucked into the maelstrom of digitization and networking. Families and their members are making use of digital technology for their internal and external communication, adapting it to their needs and self-images of family life together, which are in turn changing in view of this very adoption and adaptation. In this process, the law also comes into play again, which in turn structures these behaviors adapted by the families to some extent, not least in view of the duty of the state to protect both parents and children from outside interferences.

Of course, from the outset, law does not capture all the relationships that arise from technology, economics, and social behavior. If, following Niklas Luhmann’s model of social subsystems,⁴⁶ one looks at law in its relationship to technology, the economy, and social norms of conduct (Fig. 1)—leaving aside the subsystems religion and science as well as the autopoietic isolation of the individual systems—it becomes visible that law is by no means involved in all interrelationships between the individual social subsystems of law, social norms, technology, and the market.

Fig. 1

Law in the context of other social subsystems

(solid lines: interaction with participation of law; dotted lines: interaction without participation of law)

According to this admittedly somewhat schematic model, law is intervening only in one half of all possible interrelationships. What is illustrated in Fig. 1 may be demonstrated by just one example. It is only some years ago that technical engineers connected a wireless telephone to the Internet and equipped it with a camera. This combination, the demand for which the technicians could only guess at first, has developed into what is known today as the smartphone, something that has had unprecedented success on the market. At the same time, it was leading to new types of images such as “selfies”,⁴⁷ “party photos”, non-professional “fashion photos”, and the like. All these developments were as such not regulated, i.e., neither promoted nor hindered by the law. Likewise, legal norms had no influence on the consequences of the playful use the users were making with this new technical device, even though these new uses lastingly changed the social conventions of interpersonal visual communication as well as communication in general. Legal action was only initiated once and to the extent that the technology-induced changes in behavior began to get out of hand and violations of traditional values such as that of privacy (e.g., voyeuristic recordings) and human dignity (e.g., cyberbullying) could be observed.

If one looks back at the examples of case law selected here, one gets the impression that the German Federal Court of Justice is very well able to make decisions with a sense of proportionality, taking due account of the family’s constitutionally required self-responsibility. The lower courts, on the other hand—and among them, above all, the courts of first instance—are obviously finding it much more difficult to arrive at well-balanced judgments when dealing, for the first time, with new digital technologies. In several cases, the strict application of legal requirements to the letter of the law leads to solutions that are rather, if not completely, out of touch with life. Without further empirical studies, however, the question must remain open of whether—with the exception of the judges of the German Federal Court of Justice—this is possibly due to a gap between an older generation of judges and a younger, more digitally oriented generation, as well as to a certain scepticism on the part of the older generation toward new forms of communication. Perhaps it will still take a while before the born digital natives set the tone in parliament and move into judgeships. Of course, it should not be forgotten that technology and the way it is used within families will have evolved even further by then.