The matter at hand
Mc Fadden runs a store selling and leasing lighting and sound systems. In order to draw the attention of customers of near-by shops, passers-by and neighbours, he offered anonymous access to a free Wi-Fi network which could be accessed in the vicinity of the store. This Wi-Fi network was subsequently used by a third party to make a musical work available on the internet free of charge to the general public without the consent of the rightholders, including Sony Music.
In these circumstances, the referring court asked the ECJ whether Article 12(1) of the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market should be interpreted as meaning that a professional who, in the course of business, operates a Wi-Fi network can be held liable for copyright infringements committed by users of that network.
The judgment of the ECJ
First of all, the ECJ holds that the making available of a Wi-Fi network to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market where the activity is performed by the service provider for the purposes of advertising the goods sold or services supplied by that service provider (paragraph 43).
Furthermore, the ECJ confirms that, where the three conditions in Article 12(1) of the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market are satisfied – namely that the provider 1) does not initiate the transmission, 2) does not select the receiver of the transmission and 3) does not select or modify the information contained in the transmission – a service provider such as Mc Fadden, who provides access to a communication network, may not be held liable for copyright infringements committed by users of that network (paragraphs 54 and 65). Consequently, the copyright holder is not entitled to claim compensation from the provider of that network or to claim reimbursement of the legal costs in relation to that claim (paragraph 79).
The ECJ, however, continues that Article 12(1) of the E-Commerce DirectiveDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market does not preclude a copyright holder “from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue” (paragraph 79).
Regarding the measures that such a provider can be required to take in order to prevent the recurrence of an infringement, the ECJ recalls, with reference to Promusicae (C‑275/06) and UPC Telekabel Wien (C‑314/12), that these measures must strike a fair balance between the freedom to conduct a business protected under Article 16 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] and the fundamental right to the protection of intellectual property laid down in Article 17(2) of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01].
According to the ECJ, a measure consisting in securing a Wi-Fi network by means of password-protection, must be considered to strike such a fair balance, provided that users are required to reveal their identity in order to obtain the password (paragraph 96). Measures consisting of monitoring the information transmitted over the network or in terminating the internet connection completely, however, cannot be regarded as complying with the requirements of ensuring a fair balance between the fundamental rights which must be reconciled (paragraphs 87 and 89).