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:
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.
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.
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