Free Wi-Fi providers not liable for users’ copyright infringements

Posted: May 25, 2016

The Advocate General has delivered an opinion that the provider of a publicly accessible, free Wi-Fi service is not liable for copyright infringements committed by users of the service.

The case was referred by the Regional Court, who asked the Court of Justice of the European Union to help them determine whether:

  1. a store owner could be held liable for a third party’s infringement committed on his free Wi-Fi network;
  2. he could rely on the “mere conduit” defence under Article 12(1) of the E-Commerce Directive; and
  3. it is possible to obtain an injunction against a free Wi-Fi operator to prevent or terminate infringement.

In the Advocate General’s view, Article 12 does limit the liability of an intermediary service provider for the information transmitted, but it does not act as a shield from injunctions requiring the termination or prevention of infringement.

Comment

Although the CJEU is not bound to follow the Advocate General’s opinion, it is a strong indication of the way in which the questions might be decided.  The determination of the issues in this case from Europe’s highest court will be significant for the liability of free Wi-Fi providers.

Germany currently has stricter laws in relation to copyright infringement committed over Wi-Fi networks, as service providers can be held liable for third parties’ infringement at present.  If the CJEU follows the Advocate General’s opinion, it will be much easier for Wi-Fi providers to supply free Wi-Fi without the fear of liability for its users’ infringements.

This is likely to disappoint many rights-holders, who would be unable to pursue an internet intermediary for infringement by an unknown internet user.  Rights-holders will draw some comfort from the fact that it is possible to obtain injunctions to terminate and/or prevent infringement.  But the recourse of a potentially expensive, after-the-event injunction is unlikely to be an attractive remedy for rights-holders, who will be well aware of the potential for rapid propagation of online content.

Jessica Welch, Associate, Michael Simkins LLP

To read the full article, click here.  Article written for Entertainment Law Review.