Germany is considered backward in terms of Internet penetration. Other industrial nations have widely distributed WLAN hotspots that can be used free of charge. Public WLAN hotspots are still not very widespread in Germany due to "Stoererhaftung" (Breach of Duty of Care). If users commit copyright infringements via WLAN hotspots, the provider of the WLAN hotspot must be liable. With a new draft law, the German Federal Government would like to Accessibility but the Federal Council believes that the new regulations will have the opposite effect. We will inform you about the current situation!
More freedom for WLAN providers
Politicians and citizens want more public hotspots in Germany. The federal government's current draft law will not be particularly helpful in this respect - at least not if the Bundesrat thinks so. The Bundesrat criticizes that the security requirements for operators are still too strict. The desire for free WLAN access is extremely pronounced in Germany. After all, mobile devices such as smartphones are being used more and more frequently. Free WLAN access is indispensable for a digital society. Germany is lagging behind at this point and is longing for what has long since become a reality in other industrialised countries. At the same time, the German government fears an increasing number of copyright infringements committed via public hotspots. The corresponding WLAN provider is supposed to prevent such violations. This is done by obtaining the consent of each individual user separately, in which he or she agrees to the terms and conditions.
While the Federal Government regards such subtleties as "appropriate safeguards", the Federal Council considers them "unworldly". The concept of "Stoererhaftung" (Breach of Duty of Care), according to which in most cases the WLAN provider can be held liable for damages caused by its users, is a brake on the development of the digital society. "Hazardous services" such as cloud services and file hosters are even treated much more restrictively than conventional services according to the presumption rule. The legal attitude is condemned in the strictest terms by the Internet industry. In the view of the Federal Council, such presumptions severely restrict freedom of the media and freedom of opinion. In the new draft law, the Federal Council would like to introduce an additional clause which would make hate messages and bullying on the Internet more punishable. In order to prosecute crimes and protect personal rights, WLAN providers will be obliged to hand over the relevant user data.
Criticism for the federal government's draft law
The WLAN bill of the Federal Government has met with criticism from the Bundesrat. The presumption rule for cloud services and filehosters and the "Stoererhaftung" (Breach of Duty of Care) for providers of WLAN hotspots will prevent exactly what is to be achieved in Germany: Free Internet access with nationwide coverage. The new liability regulations may not be compatible with EU law. The Federal Government is criticized from many sides. By the Bundesrat, the economy, network activists, free radio stations and the European Union. In an international comparison, there are relatively few open WLAN hotspots in Germany. Open WLAN hotspots are those that can be used by anyone without access data. According to the current state of affairs, the Second Amendment to the Telemedia Act does not provide a solution to the problem, as the "Stoererhaftung" (Breach of Duty of Care) has still not been overcome. WLAN providers should only be exempted from "Stoererhaftung" (Breach of Duty of Care) if they install "appropriate security measures against unauthorised access" and "only grant access to users who do not commit any legal violations during use". However, a WLAN network can never be open under such conditions. Users must be given access data, which will be assigned after agreement to the GTC's. The GTC's must in turn be designed in such a way that they prohibit the commission of copyright infringements. Since the law is to be interpreted in the narrower sense as a technical regulation, the EU Commission may issue a statement on the planned draft. The statement will address the fact that the EU E-Commerce Directive is much looser than the German version for WLAN providers. According to the EU directive, operators of public wireless networks are already granted a liability privilege if they have no connection with the "transmitted information", i.e. if users download and upload information independently.
Basic ideas of the EU Commission
The EU Commission's opinion took up Articles 11 and 16 of the EU Charter of Fundamental Rights, i.e. it referred to freedom of expression and freedom of enterprise. The extreme security obligations for WLAN providers can have an impact on their business model and thus restrict entrepreneurial freedom. In addition, there is a danger that providers of WLAN hotspots may take excessive measures to ensure that they are not liable under any circumstances. The EU Commission doubts that the measures proposed by the German government are appropriate, necessary and suitable to prevent the feared violations of the law. The EU Commission thus concurred 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 reorganisation of "Stoererhaftung" (Breach of Duty of Care). Germany's digital transformation into a digitalized state with extensive WLAN hotspots could therefore still take some time. The EU Commission also adopted the planned Liability of host providers. The e-commerce Directive would only provide for liability where providers cooperate with a user to enable the commission of illegal activities. It was also criticised that terms and definitions are not precisely formulated and need further explanation. In the near future, the Federal Government should find a suitable patent remedy to ensure the provision of public hotspots. Otherwise hardly any entrepreneur in Germany will invest in the growing future market.
