Federal Network Agency clarifies scope of regulation for WiFi sharing
Public WiFi hotspots, or rather the lack of sufficient hotspots, are a big and controversial topic in Germany today. Only recently, the government has published a draft legislation allegedly aimed at improving the situation by limiting liability risks for operators of public WiFi. The lawmaker hopes to thereby encourage the spread of WiFi hotspots. But the draft has caused some furious reactions. Critics claim that it would only worsen the situation and mock shortcomings of the draft.
Amidst all that pother, the Federal Network Agency has quietly published a Communication, tackling the problem from another angle (FNA, Communication No. 149/2015, OJ FNA 4/2015, p. 1140
). The authority has limited the scope of regulatory obligations for persons and companies who want to share their WiFi connection with others (e.g. a café or a shop offering its customers free WiFi).
Most regulatory obligations under the German Telecommunications Act, including the duty to notify the German regulator about commencing such operations on a profit-oriented basis (Sec. 6 TA), apply to the provider of publicly available telecoms services. While the provision of WiFi internet access clearly qualifies as a publicly available telecoms service, it is questionable whether persons sharing their existing internet connection with others via WiFi access qualify as providers of such service. Until recently, this issue was subject to some controversy in case law and legal literature. On 4 March 2015, however, the Federal Network Agency has issued a communication clarifying its view on the question. Accordingly, subscribers sharing the use of their existing internet connection with third party users on a temporary basis (without providing the internet connection itself, e. g. by allocating an IP address) do not provide a telecoms service but merely contribute to the provision of such service by the ISP (Sec. 3 no. 6 lit. b TA). This applies irrespective of whether the access is shared for consideration or for free.
In consequence, persons sharing their WiFi are exempted from most, however not all, regulatory obligations under German telecoms law. Contributing to the provision of telecoms services still requires adhering to certain obligations under the Telecommunications Act, i.e. maintain telecommunications privacy and protect all data related to customers’ (traffic data and personal information), disclose to customers the scope of collection and use of personal data (if any) prior to establishing the WiFi connection, and take technical measures to protect telecommunications privacy and Visitors’ personal data against unauthorised access.
Please contact: Pascal Schumacher
Practice Group: Telecommunications
Further Article: German Government Aims to Limit Liability Risks for WiFi Operators