Internet Law

Will Wi-Fi hotspot providers be liable for file sharing?

The European Commission recently published a legislative proposal containing measures to improve the European single market for electronic communications and to achieve a Connected Continent. The proposed rules allowing open Wi-Fi hotspots should be closely scrutinised.

Will Wi-Fi hotspot providers be liable for file sharing? © Benjamin-Duda-Fotolia

Will Wi-Fi hotspot providers be liable for file sharing? © Benjamin-Duda-Fotolia

Wirless networks

Article 14 of the proposal concerns the regulation of wireless local area networks. The clause restricts telecommunication providers and public authorities from preventing end users from making their Wi-Fi access available to third parties.

Private individuals, commercial providers and other organisations will all be able to utilise this right in order to make their Wi-Fi access publicly available.

General authorisation

Under the proposals, public authorities must allow the deployment, connection and operation of unobtrusive small-area wireless access. They must also permit the provision of Wi-Fi access to networks of telecommunication providers and the use of the harmonised radio spectrum. The last point is subject only to obtaining general authorisation.

The proposals foresee that the European Commission will later adopt administrative measures defining the scope of such “general authorisation”. It will concern aspects such as the maximum size, power, electromagnetic characteristics and the visual impact of the small-area wireless access points.

Wi-Fi hotspots and file sharing

The question arises as to how these new rules will interact with copyright and file sharing scenarios.

Under Art 12 of the EU’s E-Commerce Directive (transposed by § 8 of the German Telemedia Act), internet service providers are generally not liable for the information which is exchanged on their networks.

It is unclear whether current providers of small-area wireless access points, more commonly known as hotspots, are liable for the content transferred via their connection.

The EU’s plans to create a connected continent do little to bring clarity to this question of liability.

One possible interpretation of the legislative proposal is that future Wi-Fi hotspot providers would be liable for the content transferred from the access point they offer. This is because such small-scale providers are explicitly excluded from being classed as general telecommunication providers; particularly where the provision is not commercial in character, or is merely ancillary to another commercial activity or public service. This means they would not benefit from the above-mentioned exclusion from liability.

Conclusion

The question of liability for providers of small-area wireless access points needs to be clarified.

If Wi-Fi hotspot providers continue to be a risk of receiving warning letters for file sharing due to the content exchanged by users on their networks, it seems unlikely that the European Union’s commendable goal of achieving a connected Europe will be achieved.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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