As reported by heise, the Senate of Berlin (in its capacity as government of the Federal State of Berlin) will, it has been announced, put forward a motion in the Federal Council of Gemany (the second “half” of the federal parliamentary instutions next to the Bundestag) aiming at rewriting – or actually writing for the fist time – the law on the liability of those who operate WLANs for unlawful acts commited by other people through those WLANs. If successful, the motion could finally put an end to, or at least regulate by democratic means, some of the rather strange views that the German courts have taken over the past ten odd years regarding this particular “problem” of the Internet age.
In short terms, (most of) the courts including the Federal Supreme Court have held that the operator of a privately installed WLAN is liable for any unlawful acts commited through the network unless the WLAN had been encrypted by at least the then current standard technology. Also, rightholders have frequently sent warning letters to bars, hotels and similar institutions that had set up WLAN hotspots for their guests, claiming that the owners are liable for their guests’ (ussually filesharing related) transgressions – a question which has not yet been finally answered by the courts, thus leading to a lot of insecurity for businesses. Even though “liability” in those cases generally means being subject to “only” cease-and-desist claims, not damage claims, it is still hitting hard. Many times people have ended up paying the rightowners’ lawyers, paying their own lawyer and signing cease-and-desist declarations that contain risky contractual penalty clauses – or having been convicted accordingly by a court. The whole scenario has lead to bars closing their public WLANs and is keeping businesses from setting up publicly accessible WLANs at all.
The motion does not go into any specifics as to what the law-to-be-enacted should prescribe. It is, however, based on the notion that it must be possible to offer public WLANs without risking liability as long as one adheres to certain “reasonable and usually manageable rules” (whatever that may mean).
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