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The use of a predefined password in the context of 'Storerhaftung' ( Breach of Duty of Care)

The Regional Court Hamburg deviates with its decision about the 'Storerhaftung' (Breach of Duty of Care) when connecting to a WLAN router with a predefined password from the decisions made by BGH. According to the Regional Court Hamburg a subscriber can make use of the predefined password of the WLAN router if in fact it is a personnel password (in a ruling from January 09, 2015, Case No: 36a C 40/14).

In the opinion of the plaintiff a copyright violation has been detained via the defendant's Internet connections. However it was impossible to demonstrate that the defendant himself committed copyright violation. The plaintiff was of the opinion that the defendant was responsible for any kind of damages even in case of copyright violations committed by third parties who used his Internet connection, because he did not protect sufficiently his WLAN access. Thus according to the plaintiff, he creates a source of danger for which he is entirely responsible. The defendant states that his WLan access was protected accordingly: he never changes the predefined password because it could be used only for his WLan access and thus was a personnel password.

The Regional Court Hamburg decided that the WLAN access was protected sufficiently. In a landmark ruling the Federal Court fixed the requirements that must be met to protect a WLan access (Case No. I ZR 121/08 –summer of our lives). The owner of a connection has to use the encryption method right of the date of entry into service. Also he has to protect the WLAN access with an individual or predefined password. The Regional Court Hamburg deviated from these decisions and stated that the owner of a connection can only be liable for damages if he uses a predefined password on several devices. This was not the situation in the present case. The Regional Court Hamburg emphasized that in the most cases a predefined password is to be considered much more secure that a personnel one and ruled, as in the present case, the predefined password was secure.

In that regard the Regional Court Frankfurt a. Main, on June 14, 2013, (Case No. 30 C 3078/12 = MMR 2013, 605) decided that an individual pre-installed defaulted password is secure enough.