Operators of public Wi-Fi networks cannot be held liable for copyright infringements committed over the networks, according to an opinion by the EU Court of Justice's advocate general. His opinion will help the court decide on a case referred from Germany, about a business in Munich that stands accused of indirect liability in a case brought by Sony. The unsecured network was used to offer music for illegal download.
The court advocate found that the EU's Directive on e-commerce limits the liability of intermediate providers of conduit services for unlawful acts committed by a third party with respect to the information transmitted. The limited liability is dependent on three factors: the provider of the conduit service must not have initiated the transmission, must not have selected the recipient of the transmission and must not have selected or modified the information contained in the transmission. The Munich court handling the case believes Tobias McFadden, the owner of the business operating the Wi-Fi network meets these conditions, but was uncertain whether he could be considered a provider for the purposes of the Directive.
In Advocate General Maciej Szpunar's opinion, limitation of liability also applies to a person such as McFadden who, as an adjunct to his business, operates a Wi-Fi network that is accessible to the public free of charge. It's not necessary for the person in question to present himself to the public as a service provider or that he should expressly promote his activity to potential customers.
Even if a Wi-Fi provider cannot be held liable for the underlying copyright infringement or be held subject to damages, it must still comply with any court injunctions to halt the infringement, the advocate general said. However, national courts must ensure such injunctions are proportionate to the rights of the person operating the Wi-Fi network to exercise his business and the freedom of expression for traffic on the network is maintained. As such, any injunction may not require the network owner to terminate the internet connection, impose password protection on the connection or examine communications over the network. Any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the internet, could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightholders, Szpunar said.
The advocate general's opinion is not binding. The EU Court must still issue a final opinion in the case.
