Wlan jammers’ liability: legal certainty is a different matter

The German government wants to exempt hotspot operators from liability. But is that really what the draft law says?

It is supposed to be everywhere in the near future. But who dares? Photo: dpa

Two days before the planned enactment, the coalition factions have actually agreed on a bill on the "Stoererhaftung" (interference liability) of WLAN operators. However, whether this will mean that WLAN operators will no longer have to fear warnings if third parties illegally download a movie over the Internet is disputed.

It is true that the explanatory memorandum to the law states that anyone who exclusively transmits data is exempt from liability – so this should apply to Wi-Fi operators. However, the text of the law itself does not exclude claims for injunctive relief.

The so-called "Stoererhaftung" (Breach of Duty of Care) for open WLANs has long been controversial. This means that operators of an unencrypted network are liable for legal infringements committed by third parties. So if a passerby illegally downloads a piece of music, the operator of the WLAN is liable.

Two hotspots for 10,000 inhabitants

Because this can be expensive, private individuals usually refrain from offering an open WLAN. As a result, tourists, passers-by, and neighbors hardly ever find open WLANs in this country to use the Internet on the go: According to a study by the Internet association eco, there were just under two usable hotspots per 10,000 inhabitants in Germany in the last quarter of 2014. In Sweden, the figure was just under ten, and in the UK, just under 30.

"There is a danger that legal uncertainty will continue," criticizes IT lawyer Reto Mantz. Lars Klingbeil, net policy spokesman for the SPD parliamentary group, sees things differently: "With the text of the law and the justification, we are writing quite clearly for everyone who needs to know that warning costs and compensation payments for third-party infringements are no longer provided for." He fears: If it had been explicitly written into the legal text that there would be no injunctive relief against WLAN operators, this could have contradicted European law – and thus threatened legal uncertainty.

In view of this situation, potential operators of open WLANs will probably wait and see how the courts interpret the new law.

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