German government seeks to provide 'legal certainty' to Wi-Fi operators over liability issues

Out-Law News | 18 Sep 2015 | 2:37 pm | 1 min. read

Hotels, restaurants and other Wi-Fi hotspot operators in Germany will not be liable for illegal activities carried out by others over the networks they provide access to "if they have fulfilled certain duties of care", under new laws proposed by the German government.

The plans to amend the Telemedia Act in Germany are intended to clarify "the question of the extent to which an operator providing WLAN internet access must be held liable for rights violations through its users", according to the proposals that have been submitted to the European Commission for scrutiny.

The reforms, if introduced, will lead an increase in the number of Wi-Fi hotspots in Germany, according to the German government.

Munich-based intellectual property law expert Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said: "Wi-Fi operators in Germany have traditionally faced liability for infringing use of their connections regardless of whether they were at fault. Even without any level of fault they could still be forced to cease and desist from infringing activity, potentially forcing the closure of their Wi-Fi connections altogether," Barabash said.

"The German government has now outlined plans to ensure that operators of Wi-Fi networks cannot be liable as 'interferors' so long as they take reasonable steps to prevent infringement happening over their networks," he said.

According to the proposals, Wi-Fi operators will be considered to have taken "reasonable measures to prevent a rights violation by users" if they "have taken appropriate security measures against unauthorised access of the wireless local area network" and "only grant internet access to users who have declared not to commit any rights violations in the context of the use".

However, Barabash said some small businesses in Germany have criticised the planned amendments to the Telemedia Act.

"The discussion has been centred on whether the proposed changes will be of assistance to small businesses that run open Wi-Fi networks," Barabash said. "The reforms will force those companies to implement technical security measures and to set out terms of use that prospective users of their networks will have to sign up to in order to access the internet. Those measures come at a cost and so, whilst larger companies might be able to afford to implement the changes to mitigate their liability for infringing use of the Wi-Fi networks they operate, there is a question over whether the reforms are too burdensome for SMEs."