Germany’s Federal Constitutional Court has just reminded the Higher Regional Court of Cologne (one of the courts that will hold you liable for just about anything that third parties, i.e. your children, your neighbors, the guests of your hotel etc., might do using your WLAN) that, contrary to what the Cologne Court assumed, not all legal questions have been answered. The Cologne Court had refused a request by the defendant to be granted a second appeal to the Federal Supreme Court because it assumed (for reasons no one can really understand) that the Supreme Court has already decided on the relevant legal issue. That refusal, as per the Federal Constitutional Court, violated the defendant’s basic right under Art. 101 (1), second sentence, of Germany’s constitution, the “Grundgesetz”, to not be deprived of “the judge that, according to statute, should decide your case” (for lack of a better translation; the “official” translation is even worse). If there is conflicting jurisdiction on higher regional court level (and there still is) and no relevant decision by the Supreme Court exists (there is not as the one existing decision is to be clearly distinguished on the facts of the case), then refusing a second appeal to the Supreme Court means depriving one of that “statutory judge”, i.e. the Supreme Court in this case.
Combine this decision with the continuing unease regarding WLAN liability and the recent motion to clarify the law on this, and you could actually conclude that things might be moving towards the Internet age even in Germany, the Internet’s backwater (albeit self-declared data and consumer [over]protection champion).
For more updates on German and EU IT law and other IT-related matters please follow us on Twitter @germanitlaw.