No more “Stoererhaftung”?

What was for a long time associated with high liability risks and warning letters from lawyers, will now be made easier by the German government: Free wifi-hotspots.  The German government has decided to modify the so called “Stoererhaftung” – the liability of the operator of a wifi-hotspot for any infringements of law committed through the hotspot. However, even though rumor still has it a few days after the presentation of the draft for the new German Teleservices Act, this does not mean that operators of wifi-hotspots now will not be liable for whatever happens through their hotspot. To speak of a complete abolition of “Stoererhaftung” is a bit too much, at least at the moment.

The longer story

Until now, every operator of a wifi-hotspot (yes, even the private owner of a router that is used by more persons than himself) is liable for any and all infringements committed through the hotspot – be it illegal uploads or whatever else, even if they did nothing wrong themselves. Currently, hotspot-operators had to perform a number of measures (such as encryption and confirmations of the users that they will not commit any breaches of law and more) to get out of “Stoererhaftung” and court decisions varied with regard to the requirements to escape liability.

The risk to pay damages due to such (mostly uncontrollable) infringements by third parties has prevented free and publicly open wifi hotspots substantially in Germany. That is the reason why only very few public hotspots exist in Germany, and, compared to other countries, Germany seems to be a bit “behind” when it comes to public internet access.

Legally spoken, hotspot-operators will now be considered as access providers and it will be explicitly stated that it is not necessary to encrypt the hotspot and to collect confirmations from users that they will comply with the law to escape liability. However, access providers can still be subject to cease-and-desist-claims. Therefore, if the liability of wifi-operators shall be abolished, this will mean a bit more than what we know now is planned.

All this has been induced by a legal opinion of the Advocate General of the European Court of Justice. He stated that the e-Commerce Directive (Directive 2000/31/EC) does leave space the liability of hotels and cafés for breaches of law committed through their hotspots.

Leave a Reply

Your email address will not be published. Required fields are marked *