“Open WiFi Operators Are Not Liable for Pirating Users”

Restaurants, bars and shops that offer their customers free and open Wi-Fi are not liable for pirating users. This is the advice Advocate General Szpunar has sent to the EU Court of Justice in what may turn out to be a landmark case. While there's no direct liability, the AG notes that local courts may issue injunctions against Wi-Fi operators and long as they are fair and balanced.

pirate-wifiNowadays pretty much every self-respecting coffee bar has its own Wi-Fi access point, allowing customers to check their email or read the latest news.

The same is true for many other shops and establishments that offer free and open Internet access.

While most free Wi-Fi users do little harm, these unsecured networks can also be used to download and share copyrighted material. This is what happened to Tobias McFadden, who runs a local music and lighting shop in Munich, Germany.

In 2010, a music pirate on McFadden’s network was flagged by Sony, who took the owner of the shop to court. While the local German court was inclined to hold the shop operator responsible for indirect copyright infringement, EU Advocate General Szpunar disagrees.

In a lengthy advisory opinion to the EU Court of Justice, which will issue a final ruling later, Szpunar concludes that much like general ISPs, operators of commercial establishments with free Wi-Fi are not liable for pirating users.

This means that the safe harbor Internet providers enjoy also apply to members of the public who offer free Wi-Fi as part of their business.

“In his view, it is not necessary for the person in question to present himself to the public as a service provider or that he should expressly promote his activity to potential customers,” the EU Court of Justice clarifies in a press release today.

The Advocate General does leave room for local courts to impose injunctions on network operators to stop the copyright infringements. However, these should be fair and balanced, without any requirements to monitor users.

Also, the operators of free Wi-Fi should not be forced to secure their connections. This requirement would prioritize the interests of copyright holders above the public’s right to freedom of expression and information, which would not be appropriate.

“By restricting access to lawful communications, the measure would also entail a restriction on freedom of expression and information,” the Court notes.

“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 rightsholders.”

The Advocate General’s advice is not binding, but the European Court of Justice often uses such advice as the basis of its rulings.

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