Divergence in Liability for Unsecured WiFi Networks within EU

The German Supreme Court (Bundesgerichthof) delivered on 12 May 2010 an interesting ruling concerning the liability of a private wireless network owner in cases where the unsecured network is used by unknown third parties without permission. The Court found that the owner of a private wireless home network is not the one personally committing the accused copyright infringement and he thus cannot be held economically liable. However, the Court found that also private persons shall take necessary actions to prevent illegal activities taking place in their private networks. Therefore, the defendant was ordered to take common precautions to this effect, presumably meaning using encryption of some kind.

In contrast, the Finnish Turku Court of Appeals has in a ruling rendered in 2009 found that the mere unauthorized use of an unsecured wireless network is illegal as such – even if the actions performed while using the network would otherwise not be illegal. The ruling sparked debate in Finland as the Court’s conclusion could in practice extend liability to, e.g., the owners of portable devices without their knowledge. The situation is still unresolved but a working group within the Ministry of Justice has recently proposed legislative amendments with a more lenient approach to the unauthorized use of wireless networks.

It seems that the current approach towards liability in cases of unauthorized use of wireless networks is far from harmonized within the EU. As wireless connection is becoming the norm in almost every handheld device, the divergent positions taken by the different Member States may become a significant issue for device manufacturers and users alike.

Roschier, Attorneys Ltd. - Sweden