Operator of a Wi-Fi network cannot be held liable for copyright
infringements committed by users of that network
In its judgement C-484/14 dated 15 September 2016, the Court of
Justice of the European Union (CJEU) ruled that vendor who offer an
open Wi-Fi network free of charge to the public, cannot be held
liable for copyright infringements committed by users of such a
If, however, the Wi-Fi network is used unlawfully, the Wi-Fi
operator may be required by court or administrative order to
password-protect its network in order to bring an end to or prevent
such infringements. Before obtaining the password, users are
required to reveal their identity to be prevented from acting
Facts of the case
A vendor in his shop offered potential customers – in
order to draw their attention to his goods and services –
access to an anonymous Wi-Fi network free of charge. A customer
connected to this Wi-Fi hotspot downloaded a musical work from the
Internet free ofcharge and without the consent of the right holder,
thus committing a copyright infringement.
The CJEU convened to clarify if the operator of the Wi-Fi
network is liable for such copyright infringements on the grounds
that he failed to secure his network against illegal downloads.
Moreover, the CJEU reviewed the consistency of a possible liability
with the Directive on electronic commerce (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).
Key provision of the directive on electronic commerce
Art 12 para 1 of the Directive on electronic commerce –
the decisive provision of this Case – contains a limitation
of liability for services of mere conduit of data
("information society services"). Accordingly, the
service provider is not liable for information provided by the
recipient of the service on the condition that the provider (i)
does not initiate the transmission, (ii) does not select the
receiver of the transmission and (iii) does not select or modify
the information contained in the transmission. In case these
requirements are fulfilled such an access provider may not be held
Central statements of the CJEU case
The CJEU ruled that the limitation of liability pursuant to Art
12 para 1 of the Directive on electronic commerce must also be
applied to operators of Wi-Fi hotspots who offer their network to
the public free of charge, provided that the services are rendered
for purposes of advertising the goods sold and services provided by
the operator. In this respect, the objective provision of free
Wi-Fi may be regarded as information society service within the
meaning of the Directive.
Hence, the operator of a Wi-Fi hotspot cannot be held liable by
the right holder on the grounds that the network was used by third
parties to infringe upon its rights. Due to the lack of entitlement
to damages, the right holder may not claim the reimbursement of
costs incurred by giving formal notice and initiating court
However, national authorities or courts may order the Wi-Fi
operator to end, or prevent, any infringement of copyright
committed by its customers. Generally, the operator may choose
which technical measures to take in order to comply with this
obligation. In light of this, the Wi-Fi operator may not be
burdened with measures that would restrict his freedom to conduct
business in its entirety. In this regard in particular, the
complete termination of the Internet connection or the monitoring
of all information transmitted was taken into consideration.
Therefore it is legitimate to require the operator to secure the
Internet connection by means of a password, provided that the users
of the provided Wi-Fi hotspot reveal their identity to be prevented
from acting anonymously before obtaining the password.
Consequences of the decision
Despite the fact that the registration process for gaining
access to a Wi-Fi network by disclosing the user's identity
occasionally is already common practice (e.g. at airports or in
some cases also in hotels), the objective decision in its described
scope does indeed constitute a rather significant restriction for
the swift and uncomplicated use of laptops, smartphones and other
mobile devices. In view of the fact that otherwise the operator of
a private Wi-Fi network would not enjoy the limited liability of an
access-provider, the users of such networks will have to get used
to revealing their identity in the course of a formalised
registration process. Eventually, this should serve to facilitate
the prosecution of infringements committed by the actual offender
on the Internet.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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