German law can be difficult landscape to find your way through. Here, a brief guide to navigating the German laws and exceptions relating to public Wi-Fi, and possible legislative changes.
“Störerhaftung” – Third-Party Liability
“Störerhaftung” in the German legal system designates the liability according to civil law of a person for a legal offence, when the liable person is neither the perpetrator of nor a participant (e.g. accessory before the fact) in the offence. According to case law at the German Federal Court of Justice, the liability in this instance presumes a contribution to the cause. With reference to Wi-Fi networks, this means that the operators of public Wi-Fi, for example hotels and restaurants, can have a claim made against them for the legal offences of their customers because they brokered the Internet access. A sufficient contribution to cause exists if the Wi-Fi operator violates the Duty to Inspect (“Prüfungspflicht”).
However, it is unclear what this Duty to Inspect should look like and what should be just and reasonable for the operator in the individual case. Is informing the user sufficient, or do other precautions need to be taken? Or is it even necessary to store all user data? This situation has led to a certain legal uncertainty for some operators, as it is not even ultimately clarified what precautions an operator would need to take to avoid liability. Although the claims made against operators are often not legally justified, worry about legal action and the feared costs are often sufficient to at least inhibit the increased use of public Wi-Fi.
“Haftungsprivileg”
According to §8 of the German Telemedia Act, Internet access providers have a Liability Privilege. This means that access providers are not responsible for the legal violations of their users. This currently has unrestricted validity for criminal liability, and thus also for civil liability for damages.
According to current case law at the German Federal Court of Justice, the Liability Privilege does not, however, include the claim for an injunction. It is currently unclear whether this conception is contrary to the requirements of the EU E-Commerce Directive. The State Court in Munich recently presented this question to the European Court of Justice for a decision; however a quick decision is not to be expected.
German Federal Government Announces Draft Legislation
The German Federal Government acknowledged in the Coalition Contract, and highlighted again in the Digital Agenda, their intention to exploit local wireless networks as Internet access in public spaces. The goal of the Federal Government is to improve the spread and availability of the mobile Internet using Wi-Fi. For this, the legal foundations need to be created for the use of these open networks and for their operators. According to the Federal Government, legal security is urgently required for Wi-Fi operators. For this, a clarification of the liability regulations in the Telemedia Act would be considered, making them analogous to those for Internet access providers. The Federal Government has announced that it will shortly present corresponding draft legislation.
On 5th November 2014, the government factions “Die Linke” and the Greens presented their own draft legislation. The opposition is advocating the clarification and expansion of the exemption to liability for traditional Internet access providers in § 8 TMG. In this way, the “exclusion from responsibility” would expressly apply to commercial and non-commercial operators of public wireless networks in the future. This exclusion would also include the claim for an injunction.
