According to Advocate-General Szpunar of the European Court of Justice, operators of a free public WiFi network can not be held responsible for any copyright infringement by a user. They are merely to be regarded as providers of so-called pure transit services and are therefore not liable.
German courts have not yet sufficiently clarified the issue of liability of third-party access operators for copyright infringement when using open wireless networks. This causes in this country again and again for dispute and insecurity. Cafes and hotels are reluctant to provide their Wi-Fi network due to the current liability issues. WG members must also be afraid that their roommates will incur high costs when using the filesharing connection.
Maciej Szpunar, Advocate General of the European Court of Justice (ECJ), has now stated in his Opinion today that, in his view, operators of a free public WiFi network can not be held responsible for copyright infringement by a user. They are merely to be regarded as providers of so-called pure transit services and are therefore not liable.
The case referred to the ECJ by the Regional Court of Munich I concerns a warning against an event technician, which he had received due to a copyright infringement committed by a user. The user had exchanged a copyrighted music file via a provided open radio network file sharing. Then the event technician was warned by a music company as a so-called disturber fee. In contrast, he sat down in front of the district court of Munich to the defense.
The Munich district court forwarded the case to the ECJ in order to find out whether the WLAN interference liability valid in Germany, which is currently largely based on provisions of the Federal Court of Justice, is compatible with European law .
Originally, a bill of the Federal Government sawfor the operation of open Wi-Fi networks, the liability is only excluded if the connection has been secured by a corresponding password. Even then, many lawyers criticized that this clearly contradicts the nature of an open Wi-Fi network and does not improve the legal situation in any case. Advocate General Szpunar also sees it that way. He argues that the creation of a password would run counter to the need to strike a proper balance between the intellectual property rights enjoyed by the copyright holders and the entrepreneurial freedom of the service providers concerned. Moreover, by restricting access to lawful communication, that measure would restrict the right to freedom of expression and information.
“Subscribers who open their Wi-Fi access for third parties should be excluded from liability without any additional obligations,” says lawyer Christian Solmecke from the Cologne-based law firm Wilde Beuger Solmecke. “I hope that the ECJ joins the Opinion and will finally ensure legal certainty in this area.” As is often the case with the Advocate General’s recommendations, this means that every private person and business person who does not offer Internet access on a full-time basis can do so without Password protection may open, without having to fear consequences. “Even if the decision specifically concerns only traders, it is transferable to private individuals in the case,” says Solmecke.
According to the Association Digital Society , the current bill of the Grand Coalition for the Reform of WLAN Störerhaftung is clearly in contradiction to the Opinion of the Advocate General. With his vote, he made an important decision for more open radio networks in Germany and Europe. “Unfortunately, the Grand Coalition has failed miserably in this design task so far. We therefore hope that the European Court of Justice will now ensure legal certainty when operating open WLANs. The hurdles for a nationwide provision of wireless network access must finally fall, “said Volker Tripp, political director of the association.