Draft Second Act amending the Telemedia Act
The ever-widening spread of digitalisation is accompanied by increased need for public access to the internet using wireless local area networks (WLAN). The availability of the internet via WLAN has now generally become a prerequisite in hotels and increasingly also in inner cities, cafés, airports and waiting areas. This is far less widespread in Germany than in many other countries. One reason for this is that potential operators providing WLAN internet access have been made uncertain because of the liability risks arising as a result of the unclarified legal position. The question of the extent to which an operator providing WLAN internet access must be held liable for rights violations through its users has not as yet been clarified in law; case-law pronouncements by supreme courts exist in isolated cases only. Accordingly the provisions of the Telemedia Act (Telemediengesetz, TMG), which restrict the responsibility of service providers for third-party information, do not exclude claims on these operators for the removal or omission of rights violations based on strict liability in accordance with general regulations (referred to as liability for interference). The risk of a warning to desist therefore rests in particular with the WLAN operator, for which reason it is especially those smaller enterprises such as cafés or hotels which in spite of the associated competitive disadvantage often decide not to provide WLAN internet access and so do without potential customers.
The draft Act (de) is targeted at creating the necessary legal certainty in questions of liability for WLAN operators in order by this means to achieve greater WLAN coverage in Germany. There is another problem in that it is now easier and there is greater scope to violate intellectual property rights with the aid of the internet. Host providers whose business model is largely established on such rights violations are therefore no longer to be able to rely on the liability privilege under § 10 TMG in certain circumstances. The aim of the draft Act is also to clarify this.
WLAN operators’ liability for rights violations by their users is to be specified in more detail in the TMG. This involves on the one hand clarifying that such operators are access providers within the meaning of § 8 TMG. It also has to be clarified that the liability as a so-called “interferor” [“Störer”, the party causing interference] should not be considered for WLAN operators if they have fulfilled certain duties of care. Also the Act is to include that host providers whose business model is essentially built on the infringement of copyright are not to be able to rely on the liability privilege that they enjoy in accordance with § 10 TMG.
The coalition parties of CDU, CSU and SPD reached an understanding in their coalition agreement for the 18th legislative period entitled “Shaping the Future of Germany” [“Deutschlands Zukunft gestalten”] on establishing the preconditions for more WLAN offerings in German towns and cities. The aim is to make mobile internet available to everyone there via WLAN. With the present draft Act the Federal Government is creating the legal basis for the use of open networks and of the operators which provide internet access via WLAN. Specifically, these WLAN operators are given the urgently needed legal security through a “clarification of the regulations on liability (similarly to access providers)”.
Currently WLAN operators are in danger of being confronted by the holders of rights, particularly in the case of copyright warnings. These are supported inter alia by a ruling of the Federal Court of Justice in 2010 (BGH ruling of 12.05.2010, ref. I ZR 121/08, “Sommer unseres Lebens”) based on which an end-user is responsible as the interferor for rights violations by third parties if this party does not secure his WLAN access against use by third parties. The ruling relates to the case of the holder of a private WLAN connection. There has been no supreme court clarification, and consequently it is debatable whether other private and commercial WLAN operators are subject to similar protection obligations. It has also not been decided whether and under which circumstances the operator of a WLAN can also be claimed against as an interferor if it passed on the access code for a secure WLAN to a particular user. All this has resulted in great uncertainty among the operators of WLAN, with the result that entirely different precautions are taken by WLAN operators or – very often – they dispense entirely with the provision of a WLAN for fear of the legal consequences.