Are Retailers Responsible For User Activity On Their Free Wi-Fi?

Author:Mr Philip Nolan and Robert Haniver
Profession:Mason Hayes & Curran

Retailers, who in the course of business offer free unprotected Wi-Fi, should not be held responsible if their customers use the service to infringe copyright. This is according to the preliminary Opinion of the Advocate General ("AG") of the Court of Justice of the European Union ("CJEU") in the long-running German case of Tobias McFadden v Sony Music Entertainment Germany GmbH (C-484/14). In particular, the AG found that retailers offering such Wi-Fi may be able to rely on the 'mere conduit' defence against liability. The AG also offered his views on the situations in which a national court could order a retailer to take steps to prevent the infringement.

Questions for the CJEU

McFadden operates a shop in Munich selling light and sound equipment. He was sued by Sony after an unknown person used his shop's Wi-Fi internet connection to make copyright-protected musical works available for download. Sony looked for damages and injunctive relief against McFadden. He denied liability and sought to rely on the 'mere conduit' defence available to providers of 'information society services' under Article 12(1) of the eCommerce Directive ( 2000/31/EC).

At national level, the German Court took the view that McFadden may be indirectly liable for the copyright infringement as his Wi-Fi network was not password secured. However, the German Court was unsure whether McFadden qualified as a 'service provider' of 'information society services' and whether he could rely on the 'mere conduit' defence. The German Court asked the CJEU to clarify (i) whether a professional person, such as McFadden, who, in the course of business, makes a free public Wi-Fi network available, falls within the scope of Article 12 of the Directive and (ii) if he does, how his liability is limited by that provision.

Mere Conduit

The Directive requires EU Member States to ensure that their national laws provide internet intermediaries with immunity from liability for transmitting, hosting or caching unlawful third party content. Under Article 12, EU Member States must ensure that providers of 'information society services' are not liable for information transmitted by others through their service where they act as a 'mere conduit'.

In order to qualify for this exemption, the service provider must not:

initiate the transmission; select the receiver of the transmission; and select or modify the information contained in the transmission. Are Free Wi-Fi Services Covered by the...

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