Free public Wi-Fi is not a rarity, especially among shops that try to draw the attention of potential customers to their goods and services. However, what happens when a user commits a copyright infringement while using that Wi-Fi network? Would the person who runs the shop be held liable for the crime?

Germany’s Regional Court referred this question to the Court of Justice of the European Union (CJEU) in the case Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, which gave a preliminary ruling in September.

In this case, the appellant ran a lighting and sound system shop, where he offered free Wi-Fi access to the public. In 2010, a person used the internet connection in this shop in order to download music illegally. The German Court was of the opinion that, even though he was not the actual party who infringed the copyright, he was still indirectly liable on ground that his Wi-Fi network was not secure. Therefore, it referred the case to the CJEU for its interpretation of EU law.

The CJEU began by noting that the EU’s directive on electronic commerce is applicable, as it said that offering free Wi-Fi to the public with the intention of attracting potential customers constitutes an “information society service”.

This directive exempts the information society service provider from indirect liability, in that the intermediate provider providing such conduit services is excluded from the liability of illegal acts committed by third parties.

However, the court said that this exemption only held where the following three conditions were all satisfied, these being that (1) the provider of the service has not initiated the transmission; (2) he has not selected the recipient of the transmission; and (3) he has neither selected nor modified the information contained in the transmission.

Thus, where these three conditions are satisfied, the service provider offering free Wi-Fi may not be held liable and consequently, the copyright holder may not claim compensation from him for copyright infringement.

Nevertheless, the court also said that under the directive, the copyright holder has the option of seeking to have the service provider ordered to end or prevent infringement of copyright committed by its customers. Such copyright holder may do so either before a national authority or before a court.

The court also held that a measure which can deter users from infringing intellectual property rights is an injunction which orders the internet connection to be secured with a password.

This would ensure that a certain balance is reached between the intellectual property rights of the right holder and the freedom to conduct business of access and information. In this case, users would be required to reveal their identity, in order to ensure that they do not act anonymously before obtaining the required password.

Charlene Giordimaina is a legal trainee at Gonzi and Associates, Advocates.