Open Wifi, Copyright Infringement and the European Court of Justice

We all make use of open Wifi, and sometimes extravagantly so. Though a recent case from the Court of Justice of the European Union will make you think twice, particularly if you run an open

Wifi network. The case is called McFadden v Sony Music (C-484/14). Mr McFadden provided free Wifi at his shop as a way of enticing more customers to his premises. Someone however used his open Wifi network to make music that is the copyright ownership of Sony, freely available. Sony managed to trace the infringement back to Mr McFadden’s network and commenced legal proceedings.

The European Court found that Mr McFadden had been a conduit for copyright infringement. Further the Court found that the provision of free Wifi even though it is not-for-profit is an E-commerce activity, and therefore such providers have to comply with the E-commerce Directive which of course places certain legal obligations. The Court also ruled that for the provision of free Wifi to meet legal standards the networks should be password protected. This is rather counter intuitive as one would imagine free Wifi should be as easy to use as possible.

So if your business provides free Wifi, and may out there do from cafes and restaurants to retail outlets and office based service industries, you should now take two steps to ensure your free Wifi networks comply with law. Firstly it would be wise to make it a password protected network with the password given on request. Secondly the user should consent to a terms of use agreement which should pop-up as the first window the user opens, which will include clauses to the effect that the user agrees not to use the network for unlawful and inappropriate purposes, as well as standard data protection clauses.

Written by Bruno Rodrigues. If this article interested you and you wish to discuss it or any other legal issue then please do not hesitate to contact us.

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