Lawyer Martin Husovec has a post detailing an important case that has been referred to the EU Court of Justice, which could have a tremendous impact on legal liability for those who offer open WiFi in the European Union. It’s tough to improve on Martin’s summary of the post, so here it is:

The case arose between an entrepreneur selling light and audio systems who is also a member of the German Pirate Party and record label. The entrepreneur operates an open and free of charge WiFi in his store. He uses the WiFi sometimes as a tool for advertising of his store (preloaded home page points to his shop and name of the network bears its name) and sometimes to agitate for his political views (pointing to particular websites such as data protection campaigns, etc.). After receiving a letter informing him about a copyright infringement allegedly committed via his hot-spot, the entrepreneur unusually sued the right holder pursuing the negative declaratory action. The right holder as a defendant later counter-claimed asking for damages, injunctive relief and pre-trail costs as well as court fees under the above mentioned doctrine of BGH.

The referring court is hesitant whether mere conduit safe harbour of Article 12 allows especially for injunctive relief on which the German concept of Stoererhaftung is based. It points to similar cases before the Hamburg court (Case No. 25b C 431/13 and Case No. 25b C 924/13) that recently denied such claims arguing that mere conduit safe harbour prevents them. The court comes to conclusion that the plaintiff did not infringe the rights himself, and thus is considering what kind of measures can be imposed on a WiFi operator such as defendant. It is very symptomatic to German case-law on injunctive relief that the Munich court does not even mention applicability of Article 8(3) InfoSoc in this case. Despite the fact that its case is clearly about its local transposition and European limits.

He then digs deep into the specific questions raised by the court, and I recommend reading his detailed thoughts and explanations of what the different questions likely mean and the possible risks from different outcomes. The end result, though is that either some basic safe harbors could be established for those offering WiFi (as is mostly the case here in the US), or the court can continue to drag the EU in the other direction, putting often draconian liability and regulations on those who merely offer open WiFi. Martin “hopes” the court won’t add to the burdens of open WiFi operators by increasing liability and rules. However, he also notes that it’s a chance for the court to actually protect and encourage free WiFi by clearing up that merely offering it shouldn’t make one liable for the actions on that network. But, he points out:

In order this to happen, somebody should explain the court the innovative potential and social use of open WiFis beyond mere household use, which most of the judges are [only] familiar with.

In other words, this is an important case to watch for those of us who believe in the value and importance of open WiFi.

Source: Techdirt