The question of whether, and to which extent, the operator of a business offering free Wi-Fi can be held liable for intellectual-property infringements committed by users is back before the Court of Justice of the EU.
On 15 September 2016, the Court of Justice of the European Union (CJEU) ruled on a question referred by the Regional Court of Munich in Case C-484/14, Tobias Mc Fadden v Sony Music Entertainment Germany.
The decision is reasonable, but not very reassuring for free Wi-Fi in Europe. The case raises questions about the scope and interpretation of Article 12 of the E-Commerce Directive 2000/31/EC.
Article 12 limits the liability of intermediary service providers. A provider is not liable for information transmitted if the provider:
(a) does not initiate the transmission,
(b) does not select the receiver, and
(c) does not select or modify the transmitted information.
The CJEU held that providers generally cannot be held liable if a user uses their free Wi-Fi to unlawfully download copyrighted content.
However, the Court confirmed that copyright holders may seek injunctions to stop future infringements. Such injunctions must balance both sides' interests: intellectual-property rights versus the economic interests of businesses.
The Court also considered the opinion of the Advocate General, who argued that this liability limitation also applies to someone who, as a side activity, operates a publicly accessible free Wi-Fi network.
The Advocate General added that, although the Directive limits liability for mere conduit services, it does not protect providers against injunctions and non-compliance may be fined.
It remains to be seen how national courts in the EU will handle this conflict of interests and how far they will go with injunctions without violating fundamental rights.