At the same time, the German Federal Government announces to
release professional Wi-Fi network operators from liability
On 12 May 2016, the German Federal Supreme Court
– BGH) made several judgments, confirming and
developing its settled case law on the liability of a subscriber of
an internet connection ("Subscriber")
for copyright infringements made by third persons (see the
FSC's press release of 12 May 2016). The full
judgments are not yet available.
In case 1 (Case No. I ZR 48/15), the FSC found that the
Subscriber's allegations, i.e., that his children (15 and 17
years) had shared the litigious 809 audio files, were irrelevant.
In particular, the FSC confirmed its earlier position (as in judgment of 11 June 2015, Case No. I ZR
75/14) that there shall be a presumption that the Subscriber
has committed the infringements and that this presumption can only
be rebutted if the Subscriber achieves to specify in sufficient
detail that specific third persons might be the real infringers
(so-called sekundäre Darlegungslast). According to
the FSC's view, the mere reference to third persons living in
the same household as the Subscriber cannot eliminate the
Subscriber's liability for damages and reimbursement of legal
expenses for warning costs.
In case 2 (Court No. I ZR 86/15), the Subscriber had
provided her WI-FI router passwords to her niece and her
niece's partner from abroad who were visiting the Subscriber.
The FSC held that the Subscriber cannot be held liable for
forbearance, based on copyright infringements committed by its
guests. In particular, the FSC emphasized that, without a concrete
reason, the Subscriber shall not be obliged to instruct his / her
visitors not to commit copyright infringements. This shall apply
not only to full of-age visitors and guests, but also to full
of-age members of the Subscriber's household.
The FSC Judgments are accompanied by the announcements from the
German Federal Government of 11 May 2016 to release professional
operators of Wi-Fi networks with Internet access accessible to the
public from liability for copyright infringements committed by the
Wi-Fi network's users. To this aim, the Federal Telemedia Act
(Telemediengesetz – TMG) shall be amended
accordingly (see the Federal Government's Press Conference of 11
May 2016). With this approach, the German Federal Government
appears to follow the Opinion of Advocate General Szpunar in the
proceedings before the Court of Justice of the European Union, Case
C-484/14, of 16 March 2016. The Opinion suggests that the current
legal framework in Germany, which imposes liability upon operators
of Wi-Fi networks publicly available free of charge, is not in-line
with EU legislation.
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