Since using private WLAN networks has been established the legal situation was often negotiated under German jurisdiction. This homework approaches the risks of private Wireless LAN usage and the juridical consequences.
Especially the liability for violations of third people is a common issue in terms of the “liability for interference” . Usually copyright violations lead to high compensation requests for network operators. In the last few years many lawyers specialized in admonishing copyright violators what is often called “admonishing industry”. This practice is often criticized because it’s not clear to which extent operators are responsible for foreign violations.
But also the access on foreign networks without the operator’s consent was an often negotiated issue. In this case the judges have to weigh between the interests of the network operator and the foreign user. Based on that reason this topic is also treated in this homework.
The homework is mainly based on real cases which really occurred under German jurisdiction. That means that I examined potential situations only marginal because forecasts about possible verdicts would be highly speculative. For the development of the work original verdicts of several courts and other professional texts and valuations were used.
This text is parted into three parts. The first part deals with the main risks concerning network operators and users. The second part is about the juridical consequences which result from these risks. The third part is a valuation of the current juridical situation taking regard to the law, especially the German Telecommunication Act , the Teleservices Act , the Copyright Act and marginally the Civil Code and the Criminal Code .
The work demonstrates similarities but also huge discrepancies between the legislation and the jurisdiction. These differences which are often criticized are the result of generous interpretation of the laws.
Table of Contents
1. Introduction
2. The risks of private WLAN usage
3. Liability for WLAN usage under the German jurisdiction
3.1 Liability as a private network operator
3.2 Liability as a user of foreign private networks
4. Valuation of the German concept of liability
4.1 Liability for interference as a network operator
4.2 Liability for the usage of foreign open networks (black surfing)
5. Source Materials
1. Introduction
Since using private WLAN networks has been established the legal situation was often negotiated under German jurisdiction. This homework approaches the risks of private Wireless LAN usage and the juridical consequences.
Especially the liability for violations of third people is a common issue in terms of the “liability for interference”1. Usually copyright violations lead to high compensation requests for network operators. In the last few years many lawyers specialized in admonishing copyright violators what is often called “admonishing industry”. This practice is often criticized because it’s not clear to which extent operators are responsible for foreign violations.
But also the access on foreign networks without the operator’s consent was an often negotiated issue. In this case the judges have to weigh between the interests of the network operator and the foreign user. Based on that reason this topic is also treated in this homework.
The homework is mainly based on real cases which really occurred under German jurisdiction. That means that I examined potential situations only marginal because forecasts about possible verdicts would be highly speculative. For the development of the work original verdicts of several courts and other professional texts and valuations were used.
This text is parted into three parts. The first part deals with the main risks concerning network operators and users. The second part is about the juridical consequences which result from these risks. The third part is a valuation of the current juridical situation taking regard to the law, especially the German Telecommunication Act2, the Teleservices Act3, the Copyright Act4 and marginally the Civil Code5 and the Criminal Code6.
The work demonstrates similarities but also huge discrepancies between the legislation and the jurisdiction. These differences which are often criticized are the result of generous interpretation of the laws.
2. The risks of private WLAN usage
The usage of private WLAN networks involves many risks for network operators and users. Carriers of private networks bear the risk that foreign people gain access to it. Even if there is no direct damage for the operator because most of the operators use an unlimited plan there could be several liability risks. In many cases network operators are personally liable for foreign infringements, called “liability for interference”.
Especially the liability for illegal downloads caused by third people over the private WLAN is a common issue under German jurisdiction. These downloads cause copyright infringements which the right holders try to enforce against the operator.
But there are further possible liability risks which are not judicially cleared. Unsecured WLAN networks could be used to purchase products with wrong address data. The online shop has no possibility to find out who the real buyer is. If the shop owner files a charge of fraud the internet service provider has to provide the personal data according to §100g StPO and the damaged owner could request compensation for damages from the WLAN operator.
Websites with illegal content like child pornography or websites with a politically radical tenor could be created. In case of determination the department of prosecution would try to hold the subscriber liable.
The network owner could also be damaged directly. Over badly secured networks viruses or other damaging software could be installed. The infected computer will spread the damaging software autonomously over the network.
Personal data could be spied out and abused; money could be stolen with foreign bank account data if it was transferred to other bank accounts. It would be impossible to find out the perpetrator if an open network was used.
But even using foreign networks bears risks. Operators of public networks often save connection data and protocol the data traffic like the visited websites or the transferred files. If people use foreign networks without the operator’s consent the operator can request compensation for damages if he hasn’t used an unlimited plan. If they spy out personal data they make themselves liable for prosecution.
3. Liability for WLAN usage under the German jurisdiction
3.1 Liability as a private network operator
Operators and users of private networks are liable for infringements by civil and criminal law. In the range of copyright infringements German courts have judged differently about a possible liability for interference by the network operator. In some cases the operator could be liable for violations if the violator couldn’t be determined.
The Land court7 Hamburg decided this case on 26th of June 2006. A music producer indicted a file sharer to omit the uploading of several music tracks to a file sharing network because it’s the owner of the copyright according to §85 Abs. 1 UrhG.
During the judicial hearing the copyright violator who has used the unsecured network could not be determined. The court argued that the protection hadn’t been sufficient and that the copyright violations could have been avoided if the WLAN had been secured with a password. The owner of the network is responsible as an interferer according to §1004 BGB.
The court supposed a danger of recurrence so the operator should have signed a declaration of cease and desist. The danger couldn’t be eliminated because the owner only suggested securing the network with a password. The court argued that only with that declaration a recurrence could have been avoided.
This decision was confirmed by the Land Court Frankfurt am Main on the 22nd February 2007. The song “Sommer unseres Lebens” by Sebastian Hämer was uploaded to a file sharing network over a private WLAN. The connection data of the network were determined by special software. But the respondent proved that the computer was switched off while he was on holiday at that time and that nobody had access to the flat so only a third person could have uploaded the file.
The network was only secured with the standard password and the communication between the computer and the router was not encrypted. The respondent had to pay a compensation for damages and the adhortatory letter.
The respondent appealed a conviction against the decree so the Higher Regional Court8 Frankfurt am Main had to judge the case.
It decided that the network operator is not liable as an interferer in general. Only if there are indications for an abuse the owner has to check the network. The carrier is also liable if he allows other people to use the network, the abuse of third people justifies no liability for interference. The court also decided that the liability as an interference justifies only a claim of omission but no compensation for damage.
The production company appealed on law9 so the Federal Supreme Court10 decided the case on the 12th May 2010. The court judged that the respondent was liable as an interferer because he could have avoided the infringements if he had secured his network with a self- chosen password. The court argued that the router had to be secured with an encryption according to the state of the art and that using the standard password which is printed on the router was not sufficient.
If copyrighted material is published by a specific internet connection it can be assumed that the owner of the connection published the material. The owner has to produce evidence that he is not the perpetrator of the infringement. In this case the respondent proved it, so he isn’t liable as a perpetrator but as an interferer. The company has a claim of omission and the respondent has to pay the costs for the adhortatory letter. The court argued that it is reasonable for the operator to establish precautions, so that third people can’t gain access to the network. It’s also reasonable that the operator has to pay for professional help if he is not capable of establishing security precautions.
[...]
1 In German: Störerhaftung
2 In German: Telekommunikationsgesetz (TKG)
3 In German: Telemediengesetz (TMG)
4 In German: Urheberrechtsgesetz (UrhG)
5 In German: Bürgerliches Gesetzbuch (BGB)
6 In German: Strafgesetzbuch (StGB)
7 In German: Landgericht; second level of jurisdiction in Germany
8 In German: Oberlandesgericht; third level of jurisdiction in Germany
9 revision
10 In German: Bundesgerichtshof; fourth and highest level of jurisdiction in Germany
- Arbeit zitieren
- Florian Doleschal (Autor:in), 2012, Concept of the liability for WLAN usage under German jurisdiction, München, GRIN Verlag, https://www.grin.com/document/199372
