It came as a big surprise when German media outlets recently leaked that the German government has apparently decided to abandon the so-called "Störerhaftung" with regard to third party liability rules for open Wi-Fi networks.
Before, the two governing parties had been debating this issue for months without reaching a conclusion. Why this sudden change of mind? Has the Advocate General of the European Court of Justice now tipped the scale in this case?
It is still hard to find free Wi-Fi hotspots in Germany these days. The primary reason: "Störerhaftung" - loosely translated as "interferer's liability". This German liability concept allows for cease and desist claims against the provider of the open network when an unknown third party infringes copyright by sharing a file on a file-sharing platform for example.
In order to avoid being held accountable for illegal activities, it is therefore necessary to adequately protect the Wi-Fi network against potential infringements. This has proven to be too difficult for most people and local businesses. Along with the legal uncertainties, almost no one has chosen to provide open access to the internet.
This did not stop German Tobias McFadden, however. The store owner in the south of Germany offered his customers free Wi-Fi access and later received a cease and desist letter from Sony, which is the rightsholder of a song that was illegally shared via McFadden's Wi-Fi network. The Regional Court of Munich suspended the case wanting to know from the European Court of Justice whether the German "Störerhaftung" is in line with the European E-Commerce Directive.
The CJEU is yet to decide on this question submitted by the Munich judges. However, the Advocate General's Opinion (C-484/14), which is usually a strong indication for the later ruling of the court, suggests that the German liability concept of "Störerhaftung" is indeed in conflict with European Law.
This has not gone unnoticed by the German government. In order to prevent a blatant conflict with the soon to be expected ruling of the CJEU, the German legislator is said to have finally settled the lengthy dispute and put an end to the liability of open Wi-Fi providers.
Currently the alleged agreement is only based on a few rumours. Some people have already been urged not to rejoice too quickly. A legislative proposal is still missing and it remains to be seen whether public Wi-Fi providers may still be subject to claims one way or another.
Nevertheless, the anticipation of the upcoming ruling has brought new life into the legislative discussion and is yet another example of how the European Court of Justice is influencing politics and legislation in Germany.