On 2 June, the German Parliament (Deutscher Bundestag) passed a bill (2. Gesetz zur Änderung des Telemediengesetzes – 2nd Amending Law to the Federal Telemedia Act; “New Law”). The New Law limits the scope of potential liability for transmitting information for all professional and non-professional operators of Wi-Fi networks. In particular, operators of Wi-Fi networks shall not be liable for copyright infringements committed by the relevant Wi-Fi networks’ users, providing that:
- The network operator has not caused the relevant transmission;
- The network operator has not chosen the recipient of the transmitted information
- The network operator has not chosen or changed the transmitted information.
The above exemptions shall also apply to short-term automatic store of the relevant information. The exemption shall not apply in the event that the Wi-Fi network operator collaborates with the user in order to commit illegal acts. Notably, there is no specific requirement for Wi-Fi network operators to implement and maintain reasonable security measures, such as access controls.
The New Law’s primary aim is to provide operators of Wi-Fi networks with the necessary legal certainty in relation to potential liability for copyright infringements committed by users. This appeared to be necessary, since so far it has not been clear whether and to what extent an operator of a Wi-Fi network shall be liable for copyright infringements committed by the users of the relevant Wi-Fi network (so-called Störerhaftung). Fearing potential negative consequences, smaller companies in particular, such as cafés or hotels, often desisted from providing Wi-Fi networks to their customers, which resulted in competitive disadvantages. With the New Law, the German Parliament seeks to achieve better Wi-Fi coverage across Germany. Further, the risk of injunctions by copyright holders shall be reduced.
With this approach, the German Parliament follows the Opinion of Advocate General Szpunar in the proceedings before the Court of Justice of the European Union, Case C-484/14, of 16 March 2016. The Opinion suggests that the previous legal framework in Germany, which imposes liability upon operators of Wi-Fi networks publicly available free of charge, is not in -line with EU legislation. The New Law shall come into effect three days after publication in the official journal (Bundesgesetzblatt).