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Think Before You Wi-Fi

Think Before You Wi-Fi

I am sure that at some point we have all benefited from free public Wi-Fi. It is often of great importance when abroad or somewhere where 4G is not up to the task. Arguably the time I spend searching for public Wi-Fi could be put to better use, taking in my surroundings or engaging with the people I am with, but without free Wi-Fi in these circumstances how would I be able to “check in” on Facebook or upload a picture to Instagram?  You may not wish to admit that you have the same bad habits as me but I suspect, judging by the amount of selfies and beach snaps that crop up on my news feed, I am not alone.

But when logging into these free services have you ever given any thought to the person or business who is supplying them and/or how you are using it?
Whilst a benefit for us, recent court decisions discussing the topic of free public Wi-Fi have served as a reminder that it can have some pitfalls. This was highlighted in a litigation involving a shopkeeper, Mr Tobias McFadden and Sony Entertainment’s German corporation. 

What happened?

Mr McFadden operates a sound and lighting shop.  In an attempt to attract customers he offered complimentary Wi-Fi. The Wi-Fi service was an open one, which meant that it did not require a password to access it and could be used by all who were in the shop’s vicinity. However, in 2010 Mr McFadden’s Wi-Fi network was used to upload a song in which Sony owned copyright. As a result, Mr McFadden was served with a notice from Sony making him aware of its rights. After receiving this information, rather than prevent a reoccurrence or wait for Sony’s next step he boldly raised proceedings asking the court to declare that he was not liable for the alleged infringement of Sony’s rights.

The question for the Court of Justice of the European Union (“CJEU”) to consider was in essence whether Mr McFadden (and, indeed, other suppliers of free Wi-Fi services) could rely on the “mere conduit” exemption in Article 12(1) of the E-Commerce Directive (2001/31/EC). Article 12(1) states the following;

“where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.”

CJEU decided that Mr McFadden was able to rely upon this exemption, as the Wi-Fi he was offering came under the umbrella of an “information society service”. 

However, whilst the CJEU found that Mr McFadden and other intermediaries could not, in these circumstances, be found liable for the infringements of third parties, and as a result could not be liable for costs or damages, rights holders can still seek injunctive relief to end or prevent the infringement.  In addition, the injunctive order could force the Wi-Fi provider to secure the network by way of a password and thereafter only supply that password to those who provided details of their identity. This, however, may cause issues in relation to the right to privacy under Article 7 and how network providers are to store this information with reference to the Data Protection Act.

What does this mean?


This case will no doubt be of great interest to all businesses who offer a free Wi-Fi service, especially landlords and employers. Whilst the case could be considered a win for the suppliers of these services it is only to the extent that they fall within the exemption. Providers should remain live to intellectual property infringements and remember their other obligations under the Directive, which include acting to prevent infringement after becoming aware that such an activity was taking place.

If Wi-Fi providers fail to password protect their network and obtain the identity of those using the service, they may require to reimburse the costs incurred by the copyright holder in asserting its rights by way of formal notice and/or court proceedings. Whilst this case may prompt those who offer public Wi-Fi to password protect their network there are other reasons to do so. Cyber security in general is a topic which has been getting more and more coverage and with practices such as warchalking (where individuals use chalk to mark on walls and pavements where a wireless access point is available) taking place, cyber security is something which should be taken seriously.

As the network providers will be seen to have deeper pockets than the individuals who use the free Wi-Fi service, it is unlikely that this will be the last case of its kind. Rights holders continue to be keen to protect their work and maintain the reputation and value which they have built in their respective brands.

Throughout this case the court sought to strike a balance between those who provide these services to further their business etc. and rights holders who are trying to curb infringement. With any luck this approach will continue and we do not see a decline in public Wi-Fi as my social media profile may otherwise take a hit!

Megan Briggs
Senior Solicitor

Burness admin