Copyright Infringement and Liability of Providers of 'Free' Public Wi-Fi

On 16 March 2016, Advocate General ("AG") Szpunar of the Court of Justice of the Union ("CJEU") delivered an opinion on reference to the CJEU concerning the liability of providers of password free public Wi-Fi for the copyright infringement of its users. The written opinion can be found here.

Generally, the opinion states that the operator of an 'establishment', such as a bar or hotel, offering free Wi-Fi, but offering the same for commercial reasons, is not liable for copyright infringement committed by users of their network.

AG Opinion and the CJEU

A national court in a member state of the European Union may, at its discretion, refer points of law in the form of questions to the CJEU. The CJEU will then provide a judgment on the specific content of the questions concerning the interpretation of EU law.

Prior to the CJEU considering a referral, an AG provides a written opinion on their understanding of the matter, the relevant law, and a recommendation on how the CJEU should deal with the referral. An AG opinion is not binding. However, it is a strong indication of how the CJEU is likely to view a case.

Szpunar's opinion comes after a reference was made by a German court and a full judgment from the CJEU itself will follow.

Injunctions

Whilst, if the CJEU do follow the AG's opinion, a provider would not be liable, this would not shield that provider from complying with injunctions – in respect of which a failure to comply may result in a fine or penalty.

Any injunction would clearly have to be proportionate which in the present context means being suitably limited in scope so that it addresses the infringement and protects intellectual property rights but also respects fundamental ideals like freedom of expression and freedom to conduct business – meaning a proportionate injunction would not contain restrictions as debilitating as a requirement to terminate a connection, impose a password protection or allow the monitoring of all content.

Costs

A provider of free Wi-Fi should not be liable for the copyright infringement of its users, but may be required to comply with an injunction. This raises the question of costs. Szpunar stated that an intermediary should not be the subject of any order for damages or "other costs relating to copyright infringement committed by third parties as a result of the information transmitted". However, in previous cases in the UK, intermediaries have been required to bear such costs, for example the costs of implementation of measures to bring infringement to an end. It will be interesting to see if this issue is addressed in more detail in the CJEU judgment.

A full CJEU judgment will provide eagerly anticipated authority on the matter.