Unity Media and WLAN hotspot: customers do not have to agree

The First Civil Senate of the Federal Court of Justice, which is responsible among other things for claims under the UWG, has ruled that the activation of a second WLAN signal on the WLAN router provided by Unity Media, which can be used by third parties, is permissible under competition law if customers have a right to object, the activation of the second WLAN signal does not impair their Internet access, and does not entail any other disadvantages, in particular no security or liability risks or additional costs.

The plaintiff demanded that Unity Media cease and desist from activating the separate WLAN signal if this had not been contractually agreed with the consumers and they had not declared their consent. The district court sentenced the defendant as requested. The defendant’s appeal against this was successful and led to the dismissal of the action. The Cologne Higher Regional Court had assumed that the activation of an additional signal did not impair the contractual service owed. A possible nuisance caused by the unilateral connection of the second WLAN signal was in any case not unreasonable, because customers could object to this at any time – even subsequently. There was no aggressive business practice.

The BGH has now rejected the appeal against the decision of the Cologne Higher Regional Court. The activation of the second WLAN signal does not constitute a nuisance within the meaning of Section 7 para. 1 sentence 1 UWG, because the contractual service owed – access to the Internet – is not impaired by the second WLAN signal. The contracts for Internet access services do not provide for an exclusive right of use of the routers owned by the defendant by the customers, which could prevent the defendant from using the routers as well. The undisturbed use of the router by the customers is not affected by the activation of the second WLAN signal or by its operation.

Contrary to the opinion of the court of appeal, the activation of the second WLAN signal does not constitute an imposed service. By activating a second WLAN signal on its routers, the defendant does open up the possibility for its customers to also use the defendant’s services via the Wifi spots of other customers. However, the plaintiff does not want the defendant to be prohibited from offering this additional service, but only from activating the second WLAN signal. The activation of this signal does not in itself constitute a service provided by the defendant to the owner of the router.

Even otherwise, there would be no indication that the activation of the second WLAN signal would constitute a nuisance within the meaning of Section 7 para. 1 sentence 1 UWG. Activation is an exclusively technical process which, according to the findings of the Court of Appeal, does not entail any disadvantages for customers. It does not require a disruptive visit to customers or their cooperation. Customers’ Internet access is not affected by the activation of the second WLAN signal. The Cologne Higher Regional Court did not find any indications of a threat to the security of customers or additional costs incurred by customers as a result of the extended use of the router. Customers also do not run the risk of being liable for infringements committed by third parties via the second WLAN signal.

Against harassment within the meaning of § 7 para. 1 sentence 1 UWG would also be the customers’ unrestricted right to object. They can terminate the use of the routers made available to them by third parties via an additional WLAN signal operated by the defendant at any time by lodging an objection at short notice – at the latest on the working day after next.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.