New legislation for operators of an open WLAN (Wi-Fi)
> September 2016

An act amending the Telemedia Act came into effect this summer. The legislator recognised that the use of wireless local area networks (WLANs) is generally required in hotels, city centres, cafés, airports and waiting areas due to the increase in digitisation. The amendment will give WLAN operators some legal certainty in liability situations, in order to increase WLAN coverage. The amendment to Section 8(3) of the Telemedia Act makes a WLAN operator equivalent to an access provider. An access provider is a provider of services which provides access to networks (particularly the internet) and simply transfers external content. The legislation makes it difficult for an access provider to be held liable if users break the law. They are not required to actively monitor users to check if they are breaking the law.

However, the amendment does not fully exclude the liability of a WLAN operator, e.g. users violating copyright (filesharing). Anyhow, it is clear that WLAN operators which comply with the requirements of the legislation will not be liable as an interferer.

The European Court of Justice is due to publish a decision regarding the liability of WLAN operators in the near future. The EU Advocate General issued their opinion in case C-484/14 on 16.3.2016. They stated that the commercial operator of a WLAN which is provided to the public free of charge is not liable for copyright infringements committed by users of that network. Operators cannot be required to shut down internet connections, add password protection or examinate all communication at a general level. German courts will be obliged to comply with the decision of the European Court of Justice as soon as it is issued. The European Court of Justice is expected to be in line with the opinion of the EU Advocate General.
> European Court of Justice's PRESS RELEASE No 99/16, Judgment in Case C-484/14