In a dispute between the operator of a public Wi-Fi network and
Sony Music over the download of copyright-protected music via that
network, the Court of Justice of the European Union (CJEU) was
asked to clarify whether and to what extent the operator of a shop,
hotel or bar that offers free Wi-Fi to the public is liable for
copyright infringements committed by the network's users (C-484/14).
On 16 March 2016, Advocate General Maciej Szpunar
recommended to the Court that the operator of a free Wi-Fi network
should not be held liable for copyright infringements committed
over their network. The opinion confirms the applicability of the
E-Commerce Directive (2000/31/EC), and the "mere conduit"
defense in Article 12 of that directive, to free Wi-Fi providers.
While acknowledging that the scope of application of Article 12
largely depended on the potential economic nature of the provision
of the service, the Advocate General opined that the safe harbor
provisions should also apply to operators who, as an adjunct to
their principal economic activity, offer a Wi-Fi network with an
internet connection that is accessible to the public free of
He further commented that the safe harbor provisions prevent
courts from making orders against these intermediary service
providers for payment of damages and even for the costs for giving
formal notices. However, the Advocate General said this limitation
of liability would not prevent the rightholder from seeking an
injunction against the Wi-Fi operator to end the infringement. But
that injunction could not go so far as to require that the operator
terminate or password-protect the internet connection or examine
all communications transmitted through it.
The ultimate decision of the CJEU is expected to be issued
within the next few months. In the majority of cases, the CJEU
judges tend to follow the opinions of the Advocates General.
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