Free Wi-Fi providers are not liable for copyright infringement

Tobias McFadden a German national, wished to promote his business and website by allowing free open access to his Wi-Fi connection.  In 2010, copyrighted content owned by Sony was downloaded, via McFadden’s Wi-Fi connection.  Sony commenced proceedings, with the aim for McFadden to be liable for third party copyright infringement.

The CJEU (Court of Justice of the European Union), held, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the Electronic Commerce Directive and for such ‘mere conduit’ services to be exempt from third party liability, three cumulative conditions must be met:

1. The provider must not have initiated the transmission
2. The provider must not have selected the recipient of the transmission
3. The provider must neither have selected nor modified the information contained in the transmission.

The Court judgment confirms that, where the above three conditions are satisfied, a service provider who provides access to a communication network, may not be held liable.

However, yesterday’s decision of the CJEU, allows copyright owners to obtain an injunction ordering a provider of a Wi-Fi connection to protect the connection via a password, whereby users reveal their identity, thus preventing anonymous access to the Wi-Fi network.   This is deemed a fair measure to deter Wi-Fi Users from anonymously infringing intellectual property rights.

However, whilst an injunction can be obtained in this respect, at present it is prohibited to require the termination of the Wi-Fi, or monitor the connection to protect the content of the communication via the Wi-Fi.  This affirms the prevention of monitoring obligations as stated in Article 15 of Electronic Commerce Directive.

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If you have any questions with regards the provision of free Wi-Fi, please contact Briffa. We will be able to advise you on all aspects of privacy, data protection and electronic commerce.

Briffa advises on all aspects of Intellectual Property litigation and all other aspects of intellectual property law.