According to German jurisdiction, WLAN-operators can be held liable for online-infringements on third parties’ rights committed via their connection to the internet. That is, unless the operator duly fulfills his obligation to make sure such infringements cannot and will not be committed via his connection. This also applies to WLANs operated in cafés, bars, hotels and similar places. In all these places, the WLAN operator basically has to check what his customers do online and to oblige them to act according to law.Many find this jurisdiction to be overburdening WLAN-operators. WLAN-operators – they say – resemble internet access providers. One like the other provides access to the internet for others and enables them to use internet services. Therefore, the same legal criteria – namely Section 8 of the German Telemedia Act (TMG) – should be applied. Just like internet access providers, WLAN operators should be exempt from being held liable for what others do, even if they are using their connection to the internet.

This opinion has now been adopted by the Federal Council of Germany (Bundesrat). On the initiative of the cities of Hamburg and Berlin, the Federal Government is asked to look into possible changes to the existing laws. Neither Section 8 of the German Telemedia Act, nor the jurisdiction – the say – clearly states which conditions a WLAN-operator has to meet to be exempt from liability. Measures should be taken to keep them from being held liable for what others do via their connection to the internet, as WLANs in hotels, cafés and bars form part of the telecommunications infrastructure in Germany. Thus, the operators should not even be exposed to the risk of being held liable. The overuse of written warnings against WLAN-operators should be contained.

In spring, the conference of the German Ministers of Justice had already taken a similar approach. The Federal Ministry of Justice had been asked by the Federal States’ ministers to revise the so-called “Störerhaftung” (breach of duty of care) for WLAN-operators and operators of mobile connections to the internet.