The European Court of Justice has ruled that a professional who provides free access to a wi-fi network for the public, such as a shop for its clientele, cannot be held responsible for illegal activities carried out by a third party on this network, but that it must at least secure this network by way of a password that should be distributed by identifying the people who receive it.
This ruling was handed down on Thursday 15 September (C-484/14) and is expected to provide the case law for copyright protection on the internet. It establishes a new balance between the protection of intellectual property law and protecting the freedom of business and expression, paving the way towards a more general obligation to make wi-fi networks secure.
EU law (Directive 2000/31/EC) sets out a clear framework for the legal liability of professionals who, as part of their activities, use a wi-fi network with free public access to the internet. These professionals are not liable for the violation of copyright committed by someone using this network, as long as the provider of the mere conduit service has not initiated the transmission, has not selected the recipient of the transmission, and has not selected or modified the information contained in the transmission.
In the case in point, the Court confirms this framework but deems that this directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.
In this way, a service provider, such as a shop or hotel, may be obliged to ensure that their internet connection is secure. The Court considers that this demand could consist of introducing a password requirement. Nonetheless, the Court believes that this means alone may be insufficient for dissuading users carrying out illicit activities. To ensure that the latter cannot act in complete anonymity, they should identify themselves to the service provider in order to obtain a password.
Even if the Court points out that the monitoring of information transmitted on such a network is banned, the security requirements that it has now set out could prove controversial. This was observed by advocate general Maciej Szpunar, who in his conclusions on this case (see EUROPE 11513) opposed the generalised obligation of securing wi-fi networks with the goal of protecting copyright. He expressed concern that this kind of generalisation was likely to "lead to a disadvantage for society as a whole” and ran the risk of going beyond the provision of potential benefits for the holders of these rights. (Original version in French by Jan Kordys)