German Pirates went to the European Court for Free Wi-Fi

German Pirates went to the European Court for Free Wi-Fi

In many countries around the world, it is just as easy to access a free Wi-Fi network in a public space as it is to order a cup of coffee. But in Germany, free wireless networks are in short supply.

Tobias McFadden - Foto: CC-BY-SA by Christoph Lupe

Tobias McFadden – Foto: CC-BY-SA by Christoph Lupe

According to a study released earlier this month by eco, the Association of the German Internet Industry e. V., Germany has – from one million public hotspots in total – around 15,000 Wi-Fi hotspots that can be accessed for free without any kind of registration. This free and open initiative is called “Freifunk“.

On 9 December 2015, the case of pirate Tobias McFadden concerning the so called “Störerhaftung” was negotiated  in the European Court of Justice (ECJ) in Luxembourg . The Munich District Court had stayed the proceedings and submitted a list of questions to the European Court. The reasons for this are many conflicting policies and laws on German and EU level, their scopes are also not clearly defined. Here are the documents: HTML / PDF (German language).

What is this tangle of legal issues?

McFadden is operating an open WiFi as internet access for his customers and guests. Over this WiFi a music album was offered and downloaded via a file exchange network. The Pirate was subsequently sued. Against this case he made a counter-suit.

Due to this unique “Störerhaftung” providers of WLANs are blamed for the behavior of its users, e.g. if  copyright is violated. Affected are e.g. restaurants, hotels as well as free wireless operators  who are doing much for the common good. But federal states such as Schleswig-Holstein and North Rhine-Westfalia are promoting meanwhile Freifunk projects, because of the initiatives of local Pirate parliamentarians.

Paragraph 8 of the German Telemedia Act ensures access providers have the privilege that they are exempted as a service provider of responsibilities of any kind. Responsible for copyright infringements are therefore only the users themselves. The case from Tobias McFadden aims on this apparent contradiction to this “Störerhaftung”. With the reorganization of the German Telemedia Act, the federal government continued to provide legal certainty ostensibly for promoting and disseminating free WiFi. But by ambiguity prevails and nonsensical provisions it only creates more obstacles and ambiguities. The expansion of free wireless networks in Germany is therefore still hampered.

Does “Störerhaftung” Contradicts the EU Charter?

The EU Charter of Fundamental Rights guarantees by Article 16 and 11 entrepreneurial freedom and free speech. The German “Störerhaftung” obviously hampered wireless service providers. Rights holders require them to spy on users of its free WiFi to control and apply other disproportionate measures or be made liable. In concrete terms, if the WiFi is encrypted and thus denied to the public, the user must assure, in addition, that he will not commit any violations, according to the proposed law of the federal government. All this can lead to receive and impart as an encroachment on the freedom of users, information will be considered.

Even encryption does not prevent rights violations ultimately

Free WiFi for everyone!

Free WiFi for everyone!

Although permits Article 52, paragraph 1 of the EU Charter restrictions on fundamental rights, but only if they serve the common good. Whether this is the case, the European Commission has already called into question and stated that a general monitoring of users is not consistent with Article 15 para. 1 of Directive 2000/31 / EC. Even encryption does not ultimately prevent rights violations.

The European Court must protect our fundamental rights

To this extent could the action of PIRATE McFadden, supported and accompanied by the German Pirate Party, have good prospects of success. McFadden is certainly optimistic:

“The day of the trial today encouraged me in the belief that even the wireless bill the federal government is incompatible with EU law. Other EU countries, the European Commission and we ourselves have proposed for convincing statements. Once again, a court must protect our fundamental rights and rescue in this case also the technical progress in Germany.”

Pirate Party Germany fully supports McFadden

Stefan Körner, chairman of the Pirate Party Germany, explains conclusively:

“We will continue to support Tobias McFadden. His complaint is groundbreaking because the draft law “Störerhaftung” is something we have consistently rejected for years. We PIRATES are committed to a free and open nationwide wireless network. In particular, we should also promote free radio. The sooner the European Court of Justice forces the Government to move, the better.”


Featured image: CC BY-SA PPDE

Patrick Schiffer

About Patrick Schiffer

I am living in Duesseldorf, Germany and I am a Member of the Pirate Party since March 2012. I’ve studied Arts & Visual Communication at the University of Maastricht in the Netherlands. I speak german, english, french and dutch fluently. I am interested in developing & spreading the ideas coming out of and getting into the Pirate movement worldwide. For that, I think this international newsletter is a great thing. And I’d love to work & communicate with pirates from different countries all over the world so that I would like to help and contribute by spreading news, commenting, making graphics, writing & lectorating for Pirate Times. I am active in several working groups in Germany and in co-coordinating the founding of the PP EU.