(More) certainty ahead: liability of commercial operators of open WLAN networks

Commercial WLAN operators will soon be certain about when and in how far they are liable for violations of third party rights by their users. The District Court in Munich (7 O 14719/12) has stayed the proceedings in a pending litigation and has submitted questions to the European Court of Justice (ECJ).

Inter alia, the court asks the liability privilege regulated in the European e-commerce directive and the German Teleservices Act (“Telemediengesetz” – TMG) is to be interpreted in a way that claims for injunctive relief, damage claims, and claims for the reimbursement of costs for warnings and court proceedings are excluded against the WLAN-operator in general or at least with regard to the first violation of third party rights. According to the respective provisions in the directive and the TMG; access providers are not responsible for the information submitted through their services.

Background

Until now, according to the jurisdiction of the German Federal Court, has always stated that claims for injunctive relief do not fall under the scope of the liability privileges regulated in the e-commerce directive and the TMG, but that access providers were obligated to delete content infringing the rights of third parties. In spite of this relatively clear jurisdiction, many regional courts in Germany have rejected such claims for injunctive relief (e.g. here). Therefore, until now, it is unclear, when and under which circumstances WLAN operators fall under the scope of the liability privileges.

The Munich court now seeks clarity with regard to this question. Apparently, the court is willing to consider a liability of the WLAN operator, because he operated the WLAN without any security measures. According to the opinion of the court, operators of WLAN networks are obliged to implement security measures as far as technically possible and if they do not comply with this obligation, are liable for injuctive relief and any damages caused. However, as this would be incompatible with the liability privileged described above, the court stayed the proceedings and presented various questions to the ECJ, trying to find out a) if the liability privileges apply, if the service is offered without remuneration and b) what is the exact scope of the privilege.

Conclusion

Even if the liability because of a breach of duty of care (“Störerhaftung”) has been discussed many times and many courts have made decisions, up to now there is no ruling of the ECJ with regard to the questions described above. Therefore, the questions submitted by the District Court in Munich may lead to more legal certainty. However, the whole subject is, to say the least, still in progress and therefore requires attention by commercial and non-commercial LAN-operators.

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