01
Apr 2016

European Advocate General for improved customer orientation – public WiFi hotspots and customer hotspots should not be held liable for legal violations committed using their connection

In the opinion of the European Advocate General of the European Court of Justice, store, bar and hotel operators which provide WiFi networks to the public free of charge are not responsible for copyright violations on the part of users. This clear stance on the part of the Advocate General is finally providing clarity on what been, up until now, at best a grey area. For example, German case law in any case always assumed so-called liability for interference on the part of the WiFi operator, which could lead to the operator being issued a warning and being obliged to cease and desist.

The Advocate General is now unequivocal in his rejection of this. The press release stated that:

"The liability of intermediaries which offer services dealing in the mere conduit data for an unlawful action committed by a third party is limited by the directive. [] In his conclusions, Advocate General Szpunar expressed the opinion that this limitation of liability applies to any person [] that runs a WiFi network available to the public at no cost as a sideline to their main business activity."

The Advocate General goes even further and does not even call for the WiFi network in itself to be specially secured. "Imposing the obligation to secure access to the WiFi network as a means of protecting copyright laws online would run contrary to the requirement to establish an appropriate balance between the intellectual property rights enjoyed by the holders of copyrights and the entrepreneurial freedom of the service providers affected. […]", taken from a press release of March 16th, 2016 (PRESS RELEASE no. 28/16).

Evaluation and classification of the conclusions:

The extensive and well-argued conclusions of the Advocate General are convincing, based on both their content and their result. The providers of free customer hotspots should be particularly happy because, if the Advocate General succeeds in prevailing with his legal position at the European Court of Justice, they will no longer have the threat of cease-and-desists hanging over them like the Sword of Damocles. Unfortunately, once again it must be stressed that the position of the Advocate General is not binding for the ultimately deciding European Court of Justice. In the system of European jurisdiction the Advocate General is regarded as more of an "advisor", the legal position of which the court may follow but is not obliged to do so. In actual fact however, rulings in the European Court of Justice exhibit a certain reliability in that the Court of Justice usually follows the opinion of its Advocate General and decides in favour of his conclusions. It is hoped that this will be the case here too. Those who are currently confronted with a cease-and-desist order are advised in any case to plead the ongoing ECJ trial in legal case C-484/14 and to invoke this in the event that claims are brought judicially or extrajudicially. A suspension of any pending proceedings seems possible given the very clear position of the Advocate General.

Dr. Robert Kazemi

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