Limited liability for free Wi-Fi access
In case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH the Court of the European Union (CJEU) was called on by the Regional Court in Munich to clarify whether a professional operating a public and free of charge Wi-Fi network, in the course of business, may be held liable for copyright infringements committed by users of that free network. Last March 16, 2016 Advocate General Szpunar delivered his opinion in this case.
The facts. It follows a case concerning Tobias McFadden, who operates a business where he offers a free Wi-Fi network accessible to the public. In 2010, a musical work (the rights were owned by Sony Music) was unlawfully offered for downloading via that Internet connection. Munich’s Regional Court took the view that, although Tobias McFadden was not the actual party responsible for infringing the copyright, he was indirectly liable, since his Wi-Fi network had not been made secure. The Court had some doubts as to whether the E-Commerce Directive precludes such indirect liability and referred some questions to the CJEU.
The Directive. Article 12 of the Directive 2003/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) exempts the intermediate provider from civil liability for the transmission of the information if (a) he does not initiate the transfer, (b) he does not select the receiver of the information and (c) he does not select or modify the information contained in the transmission.
Munich Regional Court believes that these three conditions are met, and therefore the liability should be limited, but is also uncertain as to whether Mr Mc Fadden is considered as a provider for the purpose of the Directive.
The key issue in this case is whether the Directive provides “mere conduit” protections to providers of open wi-fi hotspots, or whether they should be required password protection in order to enjoy the protection from liability for the copyright infringing actions of their customers.