An Advocate General of the CJEU has expressed his opinion that operators of a free Wi-Fi service, who offer that service to the public, will be protected by the mere conduit defence under the E-Commerce Directive and will therefore not be liable for copyright infringement committed by users of that network. Advocate General Szpunar has published his opinion in response to a series of questions posed to the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH. The case came about following an illegal download of a musical work in 2010, which prompted Sony to bring an action for damages and injunctive relief against Mr. McFadden – the operator of a business selling and renting lighting and sound systems near Munich which offered the free Wi-Fi network accessible to the public (over which the music work was unlawfully downloaded).
The Regional Court in Munich, Germany found McFadden indirectly liable on the ground that his Wi-Fi network had not been made secure. A series of questions were referred to the Court of Justice regarding whether the E-Commerce Directive precludes such indirect liability: • Is a person who, in the course of business, operates a wireless local area network with Internet access that is accessible to the public free of charge providing an information society service within the meaning of the E-Commerce Directive? • To what extent may his liability be limited in respect of copyright infringements committed by third parties? • May the operator of such a public Wi-Fi network be constrained by injunction to make access to the network secure by means of a password? Article 12 E-Commerce Directive limits the liability of intermediate providers of mere conduit services for unlawful acts committed by a third party with respect to the information transmitted. That limitation of liability takes effect provided that three cumulative conditions are fulfilled: (i) the provider of the mere conduit service must not have initiated the transmission; (ii) he must not have selected the recipient of the transmission; and (iii) he must not have selected or modified the information contained in the transmission. Advocate General Szpunar takes the view that the "safe harbour" in Article 12 of the E-Commerce Directive also applies to a person who, in addition to his principal economic activity, operates a Wi-Fi network that is accessible to the public free of charge. It is important to note that this is only the opinion of the Advocate General, and we will have to wait and see how the CJEU rules on this issue. However, the protection of free Wi-Fi services and immunity for pre-trial costs seems to be a positive decision for Wi-Fi service operators and internet access services in general – and it’s worth noting that Szpunar relied on the Wi-Fi operator’s freedom to conduct a business more heavily than on the rights of the users. Operators of free, open Wi-Fi should be mindful of the fact that the opinion did not consider whether the scope of E-Commerce Directive might also extend to the operation of such a network in circumstances where there is no other economic context, and should perhaps consider linking the provision of the service to a separate fiscal activity. It is unclear at the moment whether simply placing some advertising on a landing page, or using the service set identifier (SSID) for advertising a service for remuneration would be sufficient. We will be sure to keep you updated on the CJEU ruling.