In many jurisdictions it’s common for those who commit wrongs online to be responsible for their own actions. In Germany, things haven’t been so straightforward.
Due to a legal concept known as ‘Störerhaftung’ (‘interferer liability’), a third party who played no deliberate part in someone else’s actions can be held responsible for them.
Perhaps unsurprisingly, this legal quirk has made itself known in a number of file-sharing cases where customers have used someone else’s WiFi to commit infringements.
While this was convenient enough for copyright holders (there was always someone to blame), it meant that few people wanted to operate open WiFi. This stood in stark contrast to the situation in many other EU countries where open WiFi networks are both ubiquitous and good for trade.
In 2016, the German government promised to do something about the problem by
ensuring places like cafes and hotels would exempt from costs for court proceedings when people use their infrastructure for things such as infringement.
In 2017, regulation was put in place to help facilitate greater access to open WiFi but the environment remained chilled. Despite assurances operators wouldn’t be prosecuted under German law, many believed that EU law might still hold them liable.
Last week, however, an important step was taken when Germany’s supreme court upheld the 2017 amendments to the Telemedia Act. The Federal Court of Justice (BGH) decided that the legislation is indeed compatible with EU regulations.
The case relates to an incident back in 2013 when a man challenged a company attempting to fine him for sharing a game online. DW reports that the IT worker had been running several open WiFi networks and Tor servers, one of which was used to download and share the game Dead Island.
In common with many copyright-troll style cases, game owner Deep Silver, a subsidiary of Koch Media, demanded that the man pay 1,000 euros to make a supposed lawsuit go away.
Acknowledging there should be a means for incidents of copyright infringement to be dealt with, the BGH found that WiFi providers can be told to prevent access to file-sharing services and even block entire websites, something which helps copyright holders prevent sharing of their works.
In 2016, in a case involving Pirate Party member Tobias McFadden, the European Court of Justice previously ruled that WiFi providers cannot be held liable for third-party infringements providing local courts or authorities can order WiFi providers to take measures to stop repeat incidents of infringement.
“[T]he directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers,” the Court found.
The case ruled upon last week is now likely to head off to the European Court of Justice (ECJ) for a final decision.