COURT OF JUSTICE OF THE EUROPEAN UNION: AN OPERATOR WHO PROVIDES ACCESS TO A WI-FI NETWORK IS ALSO SUBJECT TO AN OBLIGATION TO PREVENT INFRINGEMENTS OF COPYRIGHT
A private person operating a Wi-Fi network with internet access, albeit not directly responsible for copyright infringements carried out by third parties, may be ordered to prevent such third parties from making available to the public a certain work or parts of it protected by copyright, if said person has the option of choosing the technical measures necessary for conforming to the injunction, and even where such choice consists in no more than protecting the Internet connection with a password.
With judgment of 15 September 2016 in case C-484/14, the Court of Justice of the European Union affirmed, among other things, the principle that a private person operating a Wi-Fi network with internet access may be subject to an order to prevent third parties from making available to the public a certain work protected by copyright, if such person can adopt the technical measures required for conforming to the injunction. The issue becomes relevant when thinking about a private person operating a Wi-Fi network with internet access (in the case scrutinized by the Court it was one Mr. Tobias Mc Fadden) who not only directly takes part in the infringement of a third party copyright (as an “active” service provider, capable of memorizing and re-transmitting the infringing information, would be able to) but also exercises a function of “mere conduit” of information conveyed by others (and therefore enacts a technical, automatic and passive process for the transmission of the required information).
Among the issues submitted to the Court of Justice by the Regional Tribunal I of Munich was that of the interpretation of directive 2000/31, and more precisely whether it should be understood as establishing an impediment for issuing an injunction to obligate a person who provides access to a free Wi-Fi network from stopping third parties who make available to the public, via the Internet connection and on a sharing (peer-to-peer) platform, a specific work or parts of it protected by copyright, when the provider can choose the technical measures required for conforming the injunction. The technical measures suggested by the German Regional Tribunal included shutting down the Internet connection, protecting it with a password and examining all the information conveyed through the connection.
With regard to the technical measures that may be adopted by the network access provider, the Court initially denied that a supervision of the entirety of the conveyed information could be imposed, in that such measure would contrast with the provisions set out in article 15, para. 1, of Directive 2000/31, which, particularly with regard to providers of access to a communication network, prevents the imposition of a general obligation of supervision on conveyed information. With respect to the option of completely shutting down the Internet connection, the Court held that its implementation would result in a serious violation of the Internet access provider’s right to free trade, in so far as the provider would unfairly be prevented from carrying on its activity. However, the Court also held that the provider must adopt adequate measures, having regard to a proper balancing of the relevant fundamental rights (right to free trade, freedom of information and copyright). The technical measures that may be imposed on the service provider must be sufficiently effective to prevent or, at least, make it difficult to carry out infringements of third party copyright of the work being transmitted via the Wi-Fi network. To that end, the measure involving protection of the Internet connection with a password may discourage users of the connection from infringing copyright or related rights, in so far as said users would be obliged to reveal their identity for the purpose of obtaining the password and thus preventing them from proceeding anonymously.
For these reasons, the Court of Justice ruled on the preliminary issue by holding that a private person operating a Wi-Fi network with internet access may be ordered to adopt reasonable technical measures that are necessary for preventing third parties from making available to the public a specific work protected by copyright. However, the Court specified that the technical measures imposed on the Internet connection provider must be evaluated by the judge on a case-by-case.