On June 02, 2016, the German Bundestag adopted the “Second Act amending the Telemedia Act” in accordance with the recommendations of the Committee on Economics and Energy. The amendment is to enter into force on the day following promulgation. The Federal Council could still dissent.
The amendment adds a third paragraph to Section 8 Telemedia Act. According to the new provision, the liability privileges for access providers (Section 8 (1) and (2) Telemedia Act) also apply to providers offering users internet access via WiFi. The draft bill of the Federal Government
had stipulated further requirements for these liability privileges, which have now been eliminated.
It remains to be seen whether the indirect infringement liability of providers of open WiFi connections will effectively be eliminated by the amendment of the Telemedia Act. In the future, private and commercial providers of WiFi connections are liable in the same manner as “classic” access providers. In the past, however, the Federal Court of Justice had ruled that Section 8 Telemedia Act does not exclude claims for injunctions against access providers, even if these claims were subject to high requirements. According to the grounds given for the law, the amendment is intended to fully exclude indirect infringement liability of WiFi providers.
It will be interesting to see whether the courts will change the jurisdiction on Section 8 German Telemedia Act due to the new provision. Even otherwise, providers of open WiFi connections will benefit from material liability relief under the new regulations.