Highest German court confirms that provider open WiFi is not liable

The highest German court, the Bundesgerichtshof, has confirmed that an open Wi-Fi network provider is not liable for copyright infringements committed by its users. The judge thus confirms the end of the so-called Störerhaftung.

In its ruling, the court writes that it has tested the situation against a German law from 2017, even though the infringement in question already occurred in 2013. That law was supposed to put an end to the Störerhaftung on the internet, in other words the phenomenon that a provider of an open Wi-Fi network is liable if a user of that network infringes copyrights. For example by uploading a movie. The judge’s ruling is seen as confirmation that this form of liability has indeed been eliminated.

The case revolved around a person who offered an open Wi-Fi network and at one point received a letter from a law firm because he allegedly made the game Dead Island available via his IP address. The rights to that game belonged to the publisher Koch Media. The owner of the network said he hadn’t uploaded the game himself and that he’s serving five open hotspots and two Tor exit nodes via that IP address, Heise explains. Although the ruling provides clarity about the end of the Störerhaftung, according to the site it would leave open what protection measures an owner of an open network should take.

The European Court of Justice said in a 2016 ruling that the owner of an open Wi-Fi network is not liable for infringements, but that a rightholder, as in the current case Koch Media, can demand that the owner prevent future infringements. For example, by providing its network with a password. The German court only says that there are various options for meeting this requirement.