Secondary Liability for Open Wireless Networks in Germany: Balancing Regulation and Innovation in the Digital Economy

Abstract

This paper analyses the regulatory environment for open wireless networks in Germany. Starting from the general liability principles for online intermediaries, in particular the concept of "Störerhaftung", recent case law regarding the liability of network operators for unlawful acts by network users is examined. Against this background it is discussed whether the recent legislative proposal for a reform of the Tele Media Act, which aims at creating the necessary legal environment for a better Wi-fi coverage in Germany, is well designed to achieve its aim. The article concludes that the German legislator should rather wait for a clarification of the legal framework at the European level, in particular the forthcoming decision of the CJEU in the McFadden case.

Keywords: WLAN, access providers, secondary liability, intermediary liability, electronic commerce, internet law, law and innovation

JEL Classification: K11, K13, K42