By: Dr. Thomas Jansen and Mari Martin
On May 11, 2016, the German coalition government agreed to amend the Telemedia Act, which sets the framework for Internet usage across Germany, in order to limit fault liability for Wi-Fi providers. The new regulation states that Wi-Fi providers will not be held liable for the illegal activities of persons using the service. This means that Wi-Fi providers are not responsible for users’ potentially illegal web activity, which may include copyright violations and illegal access to music, movies, and computer games. In the past, Wi-Fi operators in Germany have faced liability for the misconduct of users, regardless of their degree of fault. This left many businesses in Germany reluctant to provide public Wi-Fi access. With these amendments, the German government intends to encourage an increase in the number of Wi-Fi hotspots available in the country. This amendment clarifies that both private and commercial Wi-Fi service providers, such as restaurants or hotels, can rely on the so-called “liability privilege,” meaning they will no longer be liable for users’ online activity. However, some hurdles to an open Wi-Fi structure remain. The new law would require users to give their Wi-Fi host a written assurance that they will not act illegally before signing into the network. In addition, hotspot providers must provide “adequate” electronic security, for example, through the use of encryption methods. The amendment is the latest step in the coalition government’s “Digital Agenda,” which is aimed at improving electronic capabilities nationwide. Currently, far fewer hotspots are offered in Germany than in other EU countries such as the UK and France. With this amendment, the German government intends to change this. “We hope for an impulse so that, for example, cafés or airports or simply a private person can open his WLAN and make it accessible to others,” said Tanja Alemany, spokesperson for the German Economy Ministry. Potential hotspot providers who until now have been hesitant to provide public Wi-Fi access should now feel more secure in offering such hotspots. However, the law has been criticized by retailers, providers, and privacy activists. In particular, the provision requiring “adequate” electronic security was criticized by Germany’s HDE retailers’ federation as setting a legal “trap” because of the vague langue used in the rules regarding how the Wi-Fi is to be made electronically secure. The Bundestag is likely to debate the amendment in the coming weeks. The legislation is expected to enter into force later this year.