WiFi Hotspots – Coalition still at odds on liability for WiFi hotspots

For over a year now, the German Government has been arguing about its controversial draft legislation on WiFi hotspots. The coalition is at odds regarding the question of to what extent WiFi operators should be liable for their users’ browsing activities. Recently, the Christian Democrats (CDU) backed down from requiring router encryption. However they still want the operator to display a splash page requiring the user’s agreement to refrain from copyright infringements.

The Social Democrats (SPD) want to completely do away with liability for open WiFi providers, i.e. the operators should not be liable at all. A splash page for open WiFi networks displaying copyright information would not change the number of infringements, they say.

The conflict appears in the meantime to have stagnated somewhat since neither of the parties wants to relinquish their position as they are gradually entering into pre-election campaign mode.
Meanwhile, the European Court of Justice may well breathe new life into the debate. The Court took up a case of a German open WiFi operator who was sued by Sony because there was a copyright infringement within his access point.

In an opinion issued on 16 March, the Advocate General of the European Court, Maciej Szpunar, clearly opposed liability for commercial no-password WiFi network operators. He argues that WiFi access points offer great potential for innovation. Therefore it should be made as easy as possible to offer open WiFi to users. Szpunar says that the risk of infringements is not that high as the bandwidth of open WiFi is limited. Although the ECJ is not legally bound by Szpunar’s opinion, the Advocate General’s opinion does has some political weight and the media consider it a foretaste of the ECJ`s ruling which is expected later this year.

Further reading: German Government Approves Draft Legislation on WiFi Hotspots