Responsability of free Wi-fi providers under E-commerce | EU

The question of whether and to which extent the operator of a business which offers a free Wi-Fi network could be held liable for intellectual property infringements committed by users of such Wi-Fi, is back before the Court of Justice of the EU.

On September 15th 2016 the Court of Justice of the European Union ("CJEU")  stated on the question referred by the Regional Court Munich in the recent  Case C-484/14  Tobias Mc Fadden v Sony Music Entertainment Germany .

The  decision is reasonable but  yet not very reassuring for the free Wi-Fi in Europe. The present case raises questions as to the scope and interpretation of Article 12 of the E-Commerce Directive 2000/31/EC.

 Article 12 limits the liability of intermediary service providers  as follows:

"The  service provider is not liable for the information transmitted, on condition that the provider

• (a) does not initiate the transmission;
• (b) does not select the receiver of the transmission;
• (c) does not select or modify the information contained in the transmission."

The CJEU held that providers generally cannot be held liable if a user uses a provider's free Wi-Fi connection to unlawfully download copyrighted content.

On the other hand, the court confirmed the copyright holder’s right to seek injunctions to stop future infringements. Such injunction orders, should nevertheless take in consideration the interests of both parties: from one side the intellectual property rights of the right holder and the economic interests of business runners.

The Court of Justice took in consideration the opinion of the Advocate General who took the view that limitation of liability also applies to a person who, as an adjunct to his principal economic activity, operates a Wi-Fi network with an Internet connection that is accessible to the public free of charge.

The Advocate General nevertheless added that, whilst the Directive does limit the liability of a provider of mere conduit services, it does not shield him from injunctions, non-compliance which is punishable by a fine.

 We shall see how national courts in the EU will deal with this conflict of interests and how far they will go in their injunctions without disrespect to the fundamental rights!