Public access to a wireless network: the operator may be required to secure his network

In a decision rendered on 15 September 2016, the European Court of Justice (ECJ) set out the conditions underlying the liability of a person who operates a service that offers a wireless network when a user illegally makes a musical work available to the public on the network (CJEU, 15 September 2016, case C-484/14).

In this case, the head of a German lighting and sound equipment business offered free, anonymous wireless access to "draw the attention of customers […] passers-by and of neighbours to his company". An anonymous user used this service to upload a musical work owned by Sony Music without its prior consent. Sony Music then served notice on the operator of the wireless network to cease infringing its copyrights and claimed damages.

The national court, the Regional Court of Munich I, held that the wireless network operator did not breach the copyrights in question himself but could be indirectly responsible for the infringement of the copyrights as the network had not been secured.

The referring court then asked the ECJ whether Directive 2000/31 of 8 June 2000 on e-commerce opposes having the wireless network operator being held liable if a user of his service infringes a copyright.

Article 12.1 of the directive excludes any liability of an intermediary provider in the event of an illegal activity conducted by a third party when his service consists of a "mere conduit" of the information. This liability exclusion only applies if three cumulative conditions are fulfilled:

• The provider must not initiate the transmission;
• He must not select the receiver of the transmission;
• He must not select or modify the information obtained in the transmission.

First, the ECJ reiterates that making a wireless network available to the public, even for free, for advertising purposes constitutes an "information society service", as defined by the directive. It then states that when the three aforementioned conditions have been fulfilled, a provider who provides access to a communication network cannot be held liable. Therefore, the holder of the copyrights may not claim compensation from this provider on the grounds that the network was used by third parties to breach its rights.

However, the ECJ notes that the directive does not oppose a free wireless access provider being ordered by the right holder to secure the connection by way of a password.

Thus, anyone who operates a free, no-charge and open wireless network service, even for no consideration, cannot be held liable for copyright infringements committed by his network users. Nevertheless, he may be ordered - and even subject to a penalty - to implement the technical measures required to prevent copyright infringements, in particular by securing access to his network by way of a password.