According to media reports, the grand coalition has agreed to abolish the liability of WiFi operators for indirect infringement of third party rights via the operator’s internet connection. This would eliminate a major obstacle to the operation of freely accessible WiFi hotspots: Under current law, legal actions for an injunction may be filed against the owners of an unsecured internet connection as indirect infringers if third parties abuse the connection for rights violations. By abolishing this liability, this injunction claim against WiFi operators would lack in legal basis.
The draft bill submitted by the federal government last year to amend the Telemedia Act had still expressly included the concept of an indirect infringement liability. In a case currently pending before the CJEU (Case C-484/14), the Advocate General had clearly argued against indirect infringement liability of WiFi operators. The CJEU ruling on this matter is expected to be issued in the coming months.
Although the Federal Court of Justice (Case I ZR 272/14) has limited indirect infringement liability of WiFi operators in the event of rights violations by visitors and guests of full age with its recent judgment of May 12, 2016, the abolition of this liability will lead to a substantial reduction of legal risks when operating open WiFi networks. It remains to be seen, however, what requirements courts will place on connection owners proving that it was not the owner himself, but a third party that was responsible for the infringement committed via the connection.