In a judgement pronounced on 1 July 2008, the 11th civil senate of the Higher Regional Court of Frankfurt am Main (OLG Frankfurt a.M.) commented on the question to what extent the owner of an internet connection is liable for the unauthorised use of a WLAN connection by third parties.
The plaintiff had discovered that a user under the IP address of the defendant offered one of her sound recordings for download on an Internet file-sharing platform. In her action, she sought injunctive relief and damages. She claimed that the defendant, as the owner of an internet connection, was a source of danger and therefore had to ensure that his connection was not used by third parties for infringements. The media repeatedly reported on the misuse of WLAN connections. The defendant should therefore have taken security precautions, such as securing the router with an individualised password, using the special encryption method WPA 2 and not installing the router near a window or outside walls.
The defendant had pleaded that he had been away on holiday at the time of the incident and that no third party had had access to his PC.
The District Court had essentially upheld the action. It had left aside whether the defendant had committed the infringement himself, because it could not be ruled out that the infringement had been committed by other, unknown third parties. However, the defendant was liable for these.
On appeal by the defendant, the Higher Regional Court has now overturned this judgement and dismissed the action. It is of the opinion that the defendant is not liable as a "Stoerer" (interferer). Even if one assumes - as part of the case law does - that the connection owner has an obligation to monitor the connection regardless of the occasion - e.g. for family members - the unlimited liability of the WLAN connection owner goes much further, because he must be responsible for the intentional behaviour of any third party who has no connection with him. This is questionable because the duty of every person acting on their own responsibility to behave lawfully and in accordance with the law should not be unduly extended to third parties with the help of "Stoererhaftung" (Breach of Duty of Care).
This, in turn, requires concrete evidence of unlawful acts by third parties. The WLAN connection operator in the private sphere was therefore not liable because of the abstract danger of misuse of his connection from outside, but only if there were concrete indications of this. Such concrete indications had not existed for the defendant. The plaintiff's assertion that the risk of third parties gaining access to the internet via a third-party WLAN connection was generally known was doubtful and, moreover, far too imprecise to allow conclusions to be drawn about the risk that actually existed. Furthermore, the Higher Regional Court found the security measures deemed necessary by the plaintiff to be disproportionate.
The decision is not yet legally binding, as the Senate has allowed an appeal. The full text of the ruling will soon be available at http://www.rechtsprechung.hessen.de/.
Judgment of the OLG Frankfurt am Main of 1.7.2008, file number 11 U 52/07
Source: Press release of the Higher Regional Court Frankfurt am Main of 07.07.2008, Press spokesman RiOLG Ingo Nöhre, (Representative: Hartmut Becker),
Higher Regional Court Frankfurt am Main, Department I/7, Tel.: +49 (0)69 1367 8499, Fax.: +49 (0)69 1367 6516, E-Mail: Pressestelle@olg.justiz.hessen.de
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
