Germany is considered backward in terms of Internet distribution. Other developed nations have widely distributed Wi-Fi hotspots that can be used free of charge. Public Wi-Fi hotspots are in Germany due to the Störerhaftung still quite common. If users commit copyright infringement via Wi-Fi hotspots, the provider of the Wi-Fi hotspot must be held liable. With a new bill, the federal government wants to give up accessibility - the Federal Council, however, believes that the new regulations will rather do the opposite. We clarify the current situation!
More freedom for wireless service providers
Politicians and citizens want more public hotspots in Germany. The current draft law of the Federal Government will not be particularly helpful - at least, if it is in the opinion of the Bundesrat. He criticized that the safety requirements for operators are still too strict. The desire for free Wi-Fi access is extremely pronounced in Germany. Finally, mobile devices such as smartphones are being used more and more often. Free Wi-Fi access is essential for a digital society. Germany lags behind at this point and longs for what has long since become reality in other industrialized countries. At the same time, the German government fears an increasing number of copyright infringements committed via public hotspots. The corresponding WLAN provider should prevent such injuries. This is done by the separate request of an approval of each individual user, in which he agrees to the terms and conditions.
While the Federal Government regards such intricacies as "adequate safeguards", they are "unworldly" for the Federal Council. The concept of disturber liability, according to which the WLAN provider can be held liable for the damage caused by its users in most incidents, is a brake on the development of the digital society. "Dangerous services" such as cloud services and filehosters are treated according to the presumption rule even more restrictive than conventional services. The legal attitude is strongly condemned by the internet economy. Such assumptions severely restrict the freedom of the media and opinion from the Bundesrat's point of view. In the new bill, the Federal Council would like to set up an additional clause, by which hate messages and mobbing on the Internet should be punished more strongly. In order to prosecute criminal offenses and to protect personal rights, WLAN providers should be obligated to publish the relevant user data.
Criticism for the bill of the Federal Government
The Wi-Fi bill of the Federal Government has met with criticism from the Federal Council. The presumption rule for cloud services and Filehoster and the Störerhaftung for providers of WLAN hotspots will prevent exactly what is to be achieved in Germany: Free Internet access with nationwide expression. The new liability rules may not be compatible with EU law. The Federal Government is criticized by numerous sides. By the Federal Council, the economy, net activists, free-casts and the European Union. In Germany there are relatively few open WLAN hotspots in the international comparison. Open Wi-Fi hotspots are those that can be used by anyone without access data. According to the current state of affairs, the second Amendment Act to the Telemedia Act does not provide a solution to the problem, as the distraintor liability has still not been overcome. WLAN providers are only to be exempted from the liability for disturbances if they install "adequate security measures against unauthorized access" and "grant access only to users who commit no infringements during their use". However, a Wi-Fi network can never be open under such conditions. Users must receive access data, which will be assigned after agreement to the terms and conditions. The terms and conditions must in turn be designed so that they prohibit the commission of copyright infringement. Since the law is to be construed in the strict sense as a technical regulation, the EU Commission may issue an opinion on the proposed draft. The opinion states that the EU e-commerce directive is much looser than the German version for WLAN providers. According to the EU Directive, operators of public radio networks are already granted a liability privilege if they have no connection with the "transmitted information", ie if the users download and upload information independently.
Basic thoughts of the EU Commission
The opinion of the EU Commission took up Article 11 and 16 of the EU Charter of Fundamental Rights, ie freedom of expression and entrepreneurial freedom. The extreme security obligations for WLAN providers can affect their business model and consequently restrict their entrepreneurial freedom. There is also a risk that Wi-Fi hotspot providers take excessive measures to avoid liability under any circumstances. The EU Commission has doubts that the measures proposed by the Federal Government are appropriate, necessary and appropriate to prevent the feared infringements. The EU Commission thus agreed with the opinion of the Bundesrat. Thus, after more than a decade, the Federal Government has still not found any suitable and coherent concepts for a restructuring of the Störerhaftung. The digital transformation of Germany towards a digitized state with extensive Wi-Fi hotspots could therefore still drag on a bit. The EU Commission also commented on the proposed liability of host providers. The E-Commerce Directive would only provide for liability where providers work with a user to facilitate the commission of unlawful activities. It was also criticized that terms and definitions are not formulated exactly and require further explanation. In the near future, the federal government should find a suitable panacea to ensure the availability of public hotspots. Otherwise, hardly any entrepreneurs in Germany will invest in the growing future market.