No liability of the hotel operator for WLAN

According to a recent decision of the Local Court (AG) Hamburg, a hotel operator's liability for copyright infringement caused by the use of file-sharing networks as a result of operating a hotel WLAN is excluded.

In this case, the defendant managing director of a hotel was previously identified as the holder of a commercially used internet connection via which a film work was offered in violation ofcopyright rightsof the claimant rights holder. Following thecease-and-desist noticefrom the rights holder, the hotel operator did not provide a declaration of cessation. The rights holder subsequently sued the Local Court (AG) Hamburg for damages and reimbursement of pre-litigation attorney fees.

In the course of the proceedings, it was established that internet access is made available to hotel guests in such a way that each guest receives free, time-limited access credentials on request at the reception desk and can use both a WLAN and LAN connection in their room. The guest must log on individually and confirm the terms of use before use, according to which they "assume liability for all activities" and "alleged misuse may result in legal action". The managing director also named the hotel guests present at the time of the alleged infringement, although it could no longer be determined who exactly used the internet, since continuous data storage was not carried out fordata protectionreasons. Furthermore, the managing director stated that his primarily foreign and business-oriented guests depend on uninterrupted internet access and that if a correspondingly high standard is not met, his economic existence is threatened. In the course of various consultations, including with a specialist lawyer, no solution could be found as to how to exclude comparable misuse, without having to accept restrictions on availability, performance and transmission speed.

Court decision

By judgment of 10.06.2014 (25b 431/13), the Local Court (AG) Hamburg dismissed the action in its entirety.

The rights holder was entitled neither to reimbursement of cease-and-desist notice costs nor to damages. The court assumed that the managing director was relieved of tort liability as an actor, since the privilege under theTelemediengesetz (§ 8 Abs.1 TMG)applied to him as an access provider, whereby he was not responsible for third-party information.

Furthermore, in the court's view, agency of the hotel operator was excluded because hotel guests were present at the material time of the alleged infringement and could at least temporarily access the internet connection.

The court also excluded the hotel operator's liability as a mere conduit since the operator had not breached any inspection and monitoring obligations that were possible and reasonable for him. The court regarded the measures taken by the hotel's managing director as sufficient and did not consider an expansion of notification obligations to be necessary. In the court's view, it was in any case questionable whether a hotel operator is obliged to provide instructions. In particular, there was no need to block any ports. It is in any case not reasonable to expect the hotel operator to take measures that at the same time carry the risk of blocking access to lawful services and/or result in the internet connection's performance being noticeably limited. A hotel operator who, for economic reasons, depends on enabling his hotel guests to use the internet without disruption must not be required to take measures that could economically endanger his business model.

Conclusion

A hotel operator who grants his hotel guests access to his adequately secured internet connection with reference to the terms of use does not, according to this case law, liable either as an actor or as a mere conduit for any copyright infringement that may occur via this connection, provided he did not commit the infringement himself. What is noteworthy about this decision is that the court expressly excluded the hotel operator's liability as a perpetratoraccess provider. The decision is also transferable to operators of internet cafés and the like and should be welcomed as consistent with current Federal Court of Justice (BGH) case law in comparable cases.