The European Court of Justice has today offered a preliminary “opinion” on the long-running “McFadden case” in Germany, which effectively concludes that operators of free (no password required) open public WiFi networks cannot be held liable for copyright infringements committed on their networks.
The outcome is perhaps a victory for common sense and may also provide some potential defence to those who accidentally leave their home WiFi networks open for anybody within range to access, as well as public libraries, cafes and other venues that offer such services.
Malcolm Hutty, EuroISPA’s Liability Committee Chair, 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 a 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.”
The “opinion” reflects a key interpretation of the EU E-Commerce Directive, but it is not strictly binding. However it does come from the Court’s Advocate General (AG) and therefore carries with it some significant weight.
EuroISPA also believes that the Opinion “strongly vindicates the right to privacy of communications, by precluding the providers of Internet services from undertaking general surveillance of user activities on their network in search of copyright-infringing content” and if approved it may help to boost the spread of public WiFi.
The Full Opinion (Conclusion)
In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Landgericht München I (Regional Court, Munich I) as follows:
1. Articles 2(a) and (b) and 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) must be interpreted as applying to a person who, as an adjunct to his principal economic activity, operates a local wireless network with Internet access that is accessible to the public free of charge.
2. Article 12(1) of Directive 2000/31 precludes the making of any order against a provider of mere conduit services that entails a finding of civil liability against that service provider. That provision therefore precludes the making of an order against a provider of such services not only for the payment of damages, but also for the payment of the costs of giving formal notice or other costs relating to an infringement of copyright or a related right committed by a third party as a result of the information transmitted.
3. Article 12(1) and (3) of Directive 2000/31 does not preclude the granting of a court injunction non-compliance with which is punishable by a fine.
National courts must, when issuing such an injunction, ensure:
– that the measures in question comply with Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and, in particular, are effective, proportionate and dissuasive;
– that, in accordance with Articles 12(3) and 15(1) of Directive 2000/31, they are aimed at bringing a specific infringement to an end or preventing a specific infringement and do not entail a general obligation to monitor, and
– that the application of those provisions, and of other detailed procedures laid down in national law, achieves a fair balance between the applicable fundamental rights, in particular, those protected by Articles 11 and 16 of the Charter of Fundament Rights of the European Union and by Article 17(2) of that Charter.
4. Articles 12(3) and 15(1) of Directive 2000/31, interpreted in the light of the requirements stemming from the protection of the applicable fundamental rights, do not, in principle, preclude the issuing of an injunction which leaves it to the addressee thereof to decide what specific measures should be taken. It nevertheless falls to the national court hearing an application for an injunction to ensure that appropriate measures do indeed exist that are consistent with the restrictions imposed by EU law.
Those provisions preclude the issuing of an injunction against a person who operates a local wireless 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:
– terminating the Internet connection, or
– password-protecting the Internet connection, or
– examining all communications transmitted through it in order to ascertain whether the copyright-protected work in question is unlawfully transmitted again.