Fundamental right to open sparks: why the bgh open wi-fi can not prohibit

The upcoming BGH decision to open radio networks against the background of the Federal Cross Court judgment on data retention

On 12.05.2010 wants the I. Civil Senate of the Federal Court of Justice A decision on liability on the Internet (AZ. I ZR 121/08) Chill. It’s about the question of whether private internet users who operate in their household a wireless network (WLAN) are obliged to configure it from the right for this so that farings can not access the Internet and thus make anonymous infringement.

The answer to this question has tried to give the previous instance law in accordance with a grip in the civilian toolbox of storer adhesion and the traffic safety obligation to provide both courts, which — as the OLG Dusseldorf (order of 27.12.2007; Order of 11.05.2009) — have a liability of the WLAN operator inheriting, as well as the OLG Frankfurt, which has denied liability in the concrete case, which now applied to the BGH (judgment of 01.07.2008).

That the BGH, reports of the maturing negotiation on the 18th.03.According to 2010, remarkably carefully to this question "Herantastet", Therefore, die that the case has another level that has hardly been taken into view. Namely a preamble level, which has again obtained by an interim decision of the Federal Scarf Court.

In the organic negotiation, the focus was on the focus on the focus on the focus on whether open radio networks are not a source of danger, which invite to abuse by third parties, although this is technically easy to avoid love. In fact, at first glance, it seems obvious to protect against potential infringements generally to protect against fuse, as long as they are only reasonable. This was also the starting point of the OLG Frankfurt, which ultimately denied only a liability because it means that it does not require KONNE by the defendant, to take over the standard password protection, which was set to take additional measures beyond.

The requirement for easy-to-fulfilling hedges appears as a fair solution in the sense of compensation between the interest in convenient Internet use and the concern to avoid infringements. But so tempting this solution is, so easily she will see that the second step before the first done goods. Try to answer the answer to the question of whether at all a danger or better — what it matters is important — a socially inadaquate danger — exists.

It is missing to mine, in the present case, it only went to the preparation of legal rules for radio networks. The question is in the core another, and the current dispute can not be decided without giving an answer to you. It’s about the question: Is an anonymous internet usage legally disapproved? If she is a danger to one?

The fact that the quarrel has become concrete to the behalf of whether and like a trial is only a random outlook of the actual problem becomes clear if one leads to the following parallel fall in mind: the legal dispute would not be any other if it had traded a flushed network, used by a variety of persons eligible goods, for example in a residential complex, which is supplied via a common broadband internet connection. Also in this case, the internet activity injured in the search for the infringer can only achieve a re-tracking to the person who is the name of the contract with the Internet provider is closed.

More: The anonymous Internet usage is far from being a singular exceptional case today. Almost unuitable are the occurring constellations. In addition to the existing since the early spring times of the Internet "Internet cafes", whose service is just the procurement of ad hoc internet access, it is becoming more reliable that hotels, guests and traffic facilities, libraries and other leisure facilities offer a network access. In this case, it does not matter in the local context, whether it is a wireless network, cap or an intermediate, or a wired access, because even for the case that the user must identify on the network, this can not be used in lawful violations be made: the data, who was logged in in the network, are usually not permanently stored (and can not even be stored by law because of the right, see only § 3a sentence 2 BDSG and, as far as applicable, § 12 TMG), so are so are no longer if a claimant has returned the injury to a network.

Yes, even the trap to which in this context should not be thought, obediently: on universities and schools it is self-reliable that the students and schoolers use their own responsibility the internet access available there. The fact that the legitimate group of people about access protection is disregarded from the outset is unlawful in terms of the possibilities of a later persecution of infringements, as indications identifying times are not stored here.

The series of examples can even be extended to expand the typical computer in the workplace. The worker who uses the Internet from the Buro is largely anonymous in that all colleagues in the same Buro (be it dozens or hundreds) on the Internet with the same access identifier (IP address). Even in these cases, an employee will first be used to apply to the university or school administration or employer to possibly. From there, with conventional methods to determine the perpetrator. Unless — and this would be the devotional sequence of a corresponding decision in the present case of the unprosted wireless network — he was able to contact the university, the school (ie usually the state or the community) or the employer as a direct store or infringer hold a traffic safety obligation because they opened a too uncontrolled internet access.

It is due to the same line if, according to international role models more and more cities are over, free-radio projects, as they have so far due to private initiative, to bring their way in municipal direction. So Plant Berlin Senate, in collaboration with private companies a flat-screen-covering Wi-Fi access for burgers and tourists.

It is not possible to subject the trap of a (be it now wanted or unconscious) access storage to the Internet through private individuals legal rules and herself over the treatment of access storage to the Internet through the institutional providers (Internet cafes, guests, libraries etc.) Only then to worry about when a dispute occurs. Registered has already been pointed out in the awarding decision, which it was presented, if one was requested by private users to avoid liability a hedge of radio networks, on the other hand, the institutional providers could continue to make an anonymous surfing.

This contradiction can be solved in two directions: Liability alone due to access mediation is also denied for private or it will be uniformly affirmed for private and institutional providers. The latter apparently becomes as a natural, then consequence in opinions, which respond to the awarding decision "collateral damage" — Viewed a relevant decision of the BGH (see about the transmission of the time for time online to the maturing negotiation at the BGH: "BGH makes Wi-Fi hotspots easy", 18.3.2010).

This would be a mistake! A (art-evolving) case-law that it had to content that the institutional providers need to continue to receive and maintain internet access, the personal details of their users (other access controls are not in consideration) to enjoy their traffic safety obligations , would be a violation of the Basic Law. Such a duty of obligations can not be enforced by the case-law using the general rules of storer adhesion and / or the safety obligation.

The question of the extent to which the judicial legal training are already limited herein can be based on, because at least with the judgment of the Federal Scarred Court of 02.03.2010 for inventory data retention (AZ. 1 BVR 256/08 U.a.) Is clarified that it is the task of the legislator to delineat the fundamental rights concerns affected here. In this decision, the BVerfG has derived a duty of the legislator to differentiated regulations. It can therefore not be in the hands of the case law, the "market" The provider of free internet access due to general civil law principles. Accordingly, the VI has. Civil Senate of the BGH in his judgment of 23.6.2009 (AZ. VI ZR 196/08 — Spickmich) from the law — Improde — "Right of the Internet user on anonymity" prepared and therefore rejected, with the anonymitation of internet usage restrictions for those who commercially available the users’ access to the Internet.

Accordingly, is not the potential judgment of the judgment of this site (prohibition also for institutional operators) is exclusive, so he must be dissolved after the other side, which is also called by a negligence of corresponding obligations of the private Wi-Fi operator.

Without the question of an acquaintance, whether a fundamental rights refer to the case for the decision to decide for the BGH for Decision also, in any case, this potential resistance of the logical hinge, due to which the upcoming decision of the BGH must be measured at the case-law of the BVERFG the fundamental right to obtain the confidentiality and integrity of information technology systems (judgment of 27.02.2008 — 1 BVR 370/07 U.a.) and the explicit task assignment to the legislator (judgment of 02.03.2010 — 1 BVR 256/08 U.a.To). Only the legislator, not the case-law, it is entitled to make the decision in a democratic process to the extent to which freedom to use anonymous to use the Internet, in favor of other legitimate interests.

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