No liability for public Wi-Fi

Mc Fadden is not liable to Sony Music for infringement of copyright by third parties who used the Wi-Fi network made available by him to the public.

Tobias Mc Fadden operates a business for light and sound technology. To draw the attention of potential customers to his services, he made a publicly accessible Wi-Fi network available. Via this network, a musical work was offered for download in violation of the rights of Sony Music Entertainment GmbH (Sony Music). This led to legal proceedings. The Regional Court (LG München I) dealing with the matter was of the opinion that Mc Fadden himself had not committed thecopyright infringement. Nevertheless, it considered his indirect liability due to the lack of security of the Wi-Fi network to be conceivable. In this context, the Regional Court (LG München I) referred a series of questions to the Court of Justice of the European Union (EuGH).

Ruling of the Court of Justice of the European Union (EuGH) – no liability of the Wi-Fi provider

By its judgment of 15.09.2016 – C-484/14 (Press Release No. 99/16), the Court of Justice of the European Union (EuGH) established that a Wi-Fi provider cannot be held liable if the following requirements are met:

• The service provider did not initiate the transmission
• He did not select the recipient of the transmission
• He did not select or alter the information transmitted

The liability of intermediaries offering services of mere data transmission for a wrongful act committed by a third party is limited by the Directive on electronic commerce. If the above requirements are met, a service provider cannot be held liable. The copyright holder has no claim for damages against this provider because third parties used the Wi-Fi network to infringe his rights. Since such a claim for damages does not exist, the copyright holder also cannot demand reimbursement of thecease and desistand court costs incurred for his claim for damages.

However, the Court of Justice of the European Union (EuGH) considers an order requiring the provider to secure theInternet connectionby means of a password to be suitable for establishing a balance between the rights of rights holders in their intellectual property on the one hand and the right of Internet service providers to business freedom and the right of Internet users to freedom of information on the other hand.

Conclusion

According to the Court of Justice of the European Union (EuGH), the provider of a public Wi-Fi network is not liable for copyright infringements committed by third parties, provided that the above requirements are met. However, he can be required to prevent legal violations by securing the Wi-Fi network with a password. The court, on the other hand, considers monitoring or shutting down the Wi-Fi network to be unsuitable.