The German legislator makes a new attempt to limit the liability of WLAN operators. Time will show whether the new law will last in view of contrary EU law.
In 2016 the German legislator already tried to reduce the legal risks for WLAN operators offering internet access to the public. However, the German legislator had not foreseen that, contrary to the Advocate General`s recommendation, the European Court of Justice ruled against an exemption from liability for WLAN operators (CJEU, judgment of 15 September 2016, C-484-14 – McFadden / Sony Music Entertainment). In view of potentially violated intellectual property rights such exemptions from liability were considered to be contrary to EU law as long as the WLAN operators did not implement any security measures.
This year again, the German legislator reformed the telemedia act (Telemediengesetz – TMG) of 2016 in order to finally find a way – in conformity with EU law – of limiting liability of WLAN operators. The new law became effective on October 13, 2017.
What has changed?
Sec. 8 para. 1 sentence 2 TMG constitutes that WLAN operators are not held liable for damages if one of its users engages in illegal activity unless the WLAN operator voluntarily collaborates in committing unlawful acts. As can be seen from documents produced in the legislative process, the German legislator seemingly aimed to rule out the application of the so-called “Stoererhaftung” (breach of duty of care) to WLAN operators. In view of the CJEU decision McFadden / Sony Music Entertainment, Sec. 7 para. 4 sentence 1 TMG allows that WLAN operators can be obliged to block the usage of information if otherwise there is no possibility to stop an infringement of rights. Such blocking measures can be implemented by DNS-, IP- or URL-blocking or a limitation of data volume as set out in the legislative process. On the other hand, Sec. 8 para. 4 TMG forbids to obligate the WLAN operators to collect and save personal data of the users or request a password before granting access to the internet. Also, a WLAN operator cannot be forced to cease the WLAN service entirely. In addition to that, sec. 8 para. 1 sentence 2 TMG clarifies that WLAN operators do not need to reimburse costs of legal claims or written warnings caused by the users’ behavior. It is questionable whether this is in conformity with EU laws.
The amendment of the telemedia act results in many privileges for WLAN operators and lowers their risk of being held responsible for the users’ behavior. However, doubts remain as to whether the regulations are in conformity with EU laws. Especially, the Enforcement Directive (Directive 2004/48/EG) and the Copyright Directive (Directive 2001/29/EG) require that right holders do not need to bear the costs of legal proceedings against WLAN providers. It is rather likely, that in the near future, the CJEU will have to deal with the new amendments of the telemedia act which might possibly result in a new judgment “McFadden Reloaded”. This could entail another amendment of the telemedia act. Thus, the final word concerning the liability of WLAN operators under German law might yet not have been spoken.