Copyright-infringement liability of those offering unprotected WiFi networks

The ECJ has ruled on questions of significant practical importance in relation to a reference on whether a person who offered unprotected wireless network access could be liable for copyright infringement where a third party used that network to infringe copyright, or whether they could rely on the “mere conduit” as established in Article 12(1) of the E-Commerce Directive (2000/31/EC).

The ECJ held that provision of a free WiFi service as part of a business, in order to advertise the business’ goods or services, could constitute an information society service within Article 12(1) of the E-Commerce Directive.

Communication network access providers who met the conditions for the “mere conduit” defence could not be ordered to pay a copyright owner damages or costs for an infringement of copyright carried out by users of the network. However, a copyright owner could seek injunctive relief against such a provider to prevent continuation of that infringement, and could claim costs in relation to such a claim for injunctive relief.

The ECJ held that it is for the national court to impose an injunction which required such a provider to password-protect the internet connection in order to prevent copyright infringement by users, so long as users were required to reveal their identity in order to obtain the required password.

Tobias McFadden v Sony Music Entertainment Germany GmbH, Case C-484/14, 15 September 2016.

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