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CJEU Advocate General argues for McFadden in open wi-fi case

Posted by Sam Frances on Wednesday, March 16th, 2016 at 13:35

The owner of a shop, café or other business which offers free, password-less wi-fi to the public should not be held liable for copyright infringement by users of that network. That's the recommendation made by Professor Maciej Szpunar, Advocate General of the Court of Justice of the European Union (CJEU), to the judges deciding the case of McFadden v Sony Music.

The case concerns Tobias McFadden, who operates a hi-fi shop in Munich, and provides a password-free wi-fi hotspot to his customers. In 2010, someone used this wi-fi connection to download music in infringement of copyright. Sony Music brought proceedings against McFadden, and the case eventually made its way to the CJEU.

The key issue in the case is whether the e-Commerce Directive provides “mere conduit” protections to providers of open wi-fi hotspots, or whether they should be required to password protect these services in order to enjoy protection from liability for the copyright infringing actions of their users.

In his Opinion to the CJEU, Professor Szpunar argues that businesses which provide open wi-fi to their customers ought not to be required to password-protect their connections.

The Advocate General considers that the imposition of an obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the Internet, would not be consistent with the requirement for a fair balance to be struck between, on the one hand, the protection of the intellectual property rights enjoyed by copyright holders and, on the other, that of the freedom to conduct business enjoyed by providers of the services in question. By restricting access to lawful communications, the measure would also entail a restriction on freedom of expression and information. More generally, any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the Internet, could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightholders.

The Advocate General does add that “whilst the Directive does so limit the liability of a provider of mere conduit services, it does not shield him from injunctions”. However, these injunctions have to meet some fairly stringent conditions. In particular:

The Directive precludes the issuing of an injunction against a person who operates a Wi-Fi network with Internet access that is accessible to the public, as an adjunct to his principal economic activity, where the addressee of the injunction is able to comply with it only by: (i) terminating the Internet connection; or (ii) password-protecting the Internet connection; or (iii) examining all communications transmitted through it in order to ascertain whether the copyright-protected work in question is unlawfully transmitted again.

The CJEU does not have to follow the Advocate General’s Opinion. However, if the court does follow Professor Szpunar’s advice, it could pave the way for a boom in free, open wi-fi provision throughout Europe.

Update 16/03/16:

In a press release by EuroISPA, the pan-European association of ISP associations, LINX's Head of Public Affairs and Chair of EuroISPA's intermediary liability committee, Malcolm Hutty, said:

Today’s AG Opinion further strengthens the consensus that copyright enforcement measures must be balanced with fundamental rights. It says that restricting the availability of Wi-Fi access would be a disadvantage for society as whole, that cannot be justified by benefits to copyright holders. I agree: the economic future of Europe depends on the widespread availability of Internet access, wherever you go, whenever you need it.

With over 770 members connecting from over 76 different countries worldwide, LINX members have access to direct routes from a large number of diverse international peering partners.

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