- eco position on draft for amendments to the Telemedia Act
- Expansion of liability for storage services is contrary to European law
- New hurdles instead of improvement in the legal certainty for Wi-Fi operators
eco – Association of the German Internet Industry has published a Position Statement on the draft legislation published by the German Federal Government on 12 March on changes to the Telemedia Act. The purpose of this draft legislation is to clarify the legal requirements for Wi-Fi operators. eco supports in principle Federal Government’s initiative – already announced in the coalition contract – to exploit the potential of wireless networks (Wi-Fi) in order to strengthen Internet access in public spaces. The current draft legislation does not, however, meet expectations and instead creates new legal uncertainty for Wi-Fi operators. “Compared to other industrialized nations, Germany has conspicuously few public Wi-Fi access points and now could fall even further behind in international comparison. If this draft is implemented 1:1, then Germany will remain a Wi-Fi desert,” says Oliver Süme, eco Director of Policy and Law.
Expansion of liability for storage services is contrary to European law
eco is particularly critical of the negative consequences which would result from the draft legislation for the providers of so-called “potentially risky services”. There is still no clear definition of what should be understood under the newly introduced term “potentially risky services”. Cloud-based services, media platforms and social-media services, in particular, may find themselves negatively effected by the proposed legislation, even though these would not be in the focus of the legislators. “Numerous legal, established and generally accepted business models will be endangered and made liable in a completely disproportionate manner. We maintain that such far-reaching liability for service providers for the offences of third parties is contrary to European law, and is economically unjustified,” says Süme.
New hurdles instead of improvement in the legal certainty for Wi-Fi operators
The objective of providing Wi-Fi operators with greater legal security and in this way to encourage increased use of this technology will not be achieved with the draft legislation from the German Federal Ministry for Economic Affairs and Energy. The proposed clause which is designed to clarify the fact that Wi-Fi operators are also access providers in the sense of the Telemedia Act is fundamentally sensible. However, the draft makes the liability privileges regulated therein dependent on clarification and security measures. Instead of enabling simple and uncomplicated access to publically accessible Wi-Fi services, this goal will be thwarted by subscription and registration processes, and new costs will be created.
“We see a need for improvement most particularly with regard to the already established and installed hot-spots that have implemented registration portals as a security measure. Here, there is need for legislative action and clarification. It must be ensured that these security measures meet the legal requirements, otherwise, established and proven hot-spot models will be disadvantaged and would need to be replaced or adapted, involving disproportionate economic expense,” says Süme.
