People who travel to Germany are often surprised at the lack of public, open Wi-Fi networks. That’s because German law (Störerhaftung – “liability of duty”) holds operators of public hotspots liable for everything their users do online, especially when these actions are against the law, and even if the operators weren’t aware of them.
The law doesn’t apply to commercial operators, but does to private (think home WI-Fi’s) and small operators (e.g. wireless networks set up by public establishments like coffee bars, shops, etc.).
But, there’s more than a good chance that this clause of the law will be repelled this year, and hopefully open Wi-Fi networks in Germany will mushroom as a result.
The change is spurred by the recent opinion by Maciej Szpunar, Advocate General of the European Court of Justice (ECJ), that “the operator of a shop, hotel or bar who offers a Wi-Fi network free of charge to the public is not liable for copyright infringements committed by users of that network.”
“Although an injunction may be issued against that operator in order to bring the infringement to an end, it is not possible to require termination or password protection of the Internet connection or the examination of all communications transmitted through it,” he added.
The opinion was given in the case of German Pirate Party member Tobias McFadden, who operates a business near Munich in which he offers a Wi-Fi network accessible to the public. He was sued by Sony when one of the users of his wireless netword offered for (illegal) download a musical work published by the company via that Internet connection.
The ECJ has yet to produce a ruling, but it is expected that the judge will rule in accordance with the aforementioned opinion (as ECJ judges often do).
The German Parliament has been discussing the “liability of duty” clause for a while, and the grand coalition – Germany’s governing coalition of the Christian Democrats (CDU) and the Social Democratic Party (SPD) – has ostensibly agreed to the amendments that would remove “piracy liability” for operators of open Wi-Fi networks.
According to Spiegel Online (in German), the amendments are expected to be passed by the German Parliament next week, and could be enforced as early as this autumn.