On March 15, 2018, the Higher Regional Court of Munich ruled that operators of open Wi-Fi hotspots do not have to issue cease-and-desist declarations subject to a fee despite copyright infringements by users after October 12, 2017 (Ref.: 6U 1741/17).
According to the Munich judges, the amendments to the German Telemedia Act (TMG) passed last year could therefore be compatible with European law.
Liability for interference could therefore be abolished from now on, unless the Federal Court of Justice judges the legal situation differently.
Abolition of “Stoererhaftung” – dispute between McFadden and Sony
The background to the legal dispute is the long-standing dispute between Tobias McFadden and Sony Music Entertainment Germany GmbH.
McFadden did not protect his Wi-Fi hotspot with a password and allowed other users to access it.
As a result, copyright infringements were committed via his WLAN hotspot.
Interference liability – No responsibility of the operator for copyright infringements
In September 2016, the ECJ ruled that a business owner who makes a WiFi hotspot available to the public free of charge is not responsible under copyright law (case reference: C-484/14).
Furthermore, he was also not obliged to pay damages or the corresponding warning letters and court costs.
This applies at least if three conditions are met:
- The service provider did not initiate the transfer,
- he has not selected the addressee of the transmission and
- he has not selected or changed the transmitted information.
Partial reimbursement claim between ECJ ruling and entry into force of the new TMG
Nevertheless, the injured party was able to demand the warning and court costs incurred for the enforcement of injunctive relief claims in the meantime.
Furthermore, in the event of misuse, the operator could be obliged to secure the Wi-Fi hotspot with a password.
However, this changed when the new TMG came into force on October 12, 2017.
Abolition of “Stoererhaftung” in conformity with European law?
– BGH will decide
According to online reports, the Munich Higher Regional Court has allowed an appeal to the Federal Court of Justice, which has already been lodged by Sony’s lawyers. “There is no end to the proceedings here,” said lawyer Björn Frommer according to the Süddeutsche Zeitung, because the new TMG does not work like this.