In a dispute between the operator of a public Wi-Fi network and Sony Music over the download of copyright-protected music via that network, the Court of Justice of the European Union (CJEU) was asked to clarify whether and to what extent the operator of a shop, hotel or bar that offers free Wi-Fi to the public is liable for copyright infringements committed by the network’s users (C-484/14).
On 16 March 2016, Advocate General Maciej Szpunar recommended to the Court that the operators of a free Wi-Fi network should not be held liable for copyright infringements committed over their network. The opinion confirms the applicability of the E-Commerce Directive (2000/31/EC), and the “mere conduit” defense in Article 12 of that directive, to free Wi-Fi providers. While acknowledging that the scope of application of Article 12 largely depended on the potential economic nature of the provision of the service, the Advocate General opined that the safe harbor provisions should also apply to operators who, as an adjunct to their principal economic activity, offer a Wi-Fi network that is accessible to the public free of charge.
He further commented that the safe harbor provisions prevent courts from making orders against these intermediary service providers for payment of damages and even for the costs for giving formal notices. However, the Advocate General said this limitation of liability would not prevent the rightholder from seeking an injunction against the Wi-Fi operator to end the infringement. But that injunction could not go so far as to require that the operator terminate or password-protect the internet connection or examine all communications transmitted through it.
The ultimate decision of the CJEU is expected to be issued within the next few months. In the majority of cases, the CJEU judges tend to follow the opinions of the Advocates General.