A new legal opinion from the European Court of Justice (ECJ) could topple Germany’s tight restrictions on free Wi-Fi—and internet service providers say it might also help boost the number of free Wi-Fi points across Europe.
In an opinion issued yesterday (16 March), ECJ top lawyer Maciej Szpunar wrote that businesses that offer free internet should not be held responsible if users of their networks illegally access copyrighted material.
While Szpunar’s opinion is not legally binding, it is considered a bellwether ahead of a final verdict expected to come out within the next few months.
The opinion addressed a case involving Tobias McFadden, a shopowner who refused to pay an €800 penalty fee from Sony Music for an illegal music download in his store near Munich. Szpunar argued that a business should not be liable for another person’s copyright infringement. McFadden was fined for downloading music on his store’s Wi-Fi network, although he says he wasn’t in the store at the time.
Germany has a comparably strict law that makes businesses liable for illegal activity on their Wi-Fi networks. Critics of the law argue that Germany has far fewer open and free Wi-Fi access points because businesses are afraid to take on the legal risk.
“I hope the duty of care law in Germany falls completely,” McFadden told EURACTIV.
EuroISPA, a Brussels-based association of internet service providers, said that if the ECJ rules along with Szpunar’s opinion “free Wi-Fi could become commonly available across European commercial/retail environments”.
“The economic future of Europe depends on the widespread availability of Internet access, wherever you go, whenever you need it,” said Malcolm Hutty, chair of the lobby group’s intermediary liability committee.
While Szpunar called for businesses to be relieved of liability, he also said that courts could issue an injunction to stop copyright infringement.
Szpunar determined that McFadden’s free Wi-Fi is protected by the EU E-commerce directive, which relieves internet service providers of liability for crimes committed on their networks.
If the final ECJ decision matches up with Szpunar’s opinion, it could force a change on Germany’s national law that holds businesses responsible for illegal activity. The timing is right: the German government is now trying to push through new Wi-Fi legislation that would remove liability for businesses—but only if the networks meet secure encryption standards. Critics have said that will limit internet access.
Szpunar lashed out at the German government’s idea in his written opinion.
“Any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the Internet, could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightholders,” he wrote.
The German draft law was proposed last November but has been stalled since.
A few months after Sony’s lawyers sent McFadden a fine notification, he stopped offering free Wi-Fi in his store and switched to a home-made, local wireless mesh network, known as Freifunk after the German movement backing community internet networks. Businesses that operate Freifunk networks are not liable for their users’ illegal activity.
“The only way to open free Wi-Fi in Germany is to open Freifunk,” McFadden said. There are around 30,000 Freifunk hotspots in Germany now, triple the amount from one year ago.
Because of the laxer liability rules, Freifunk has also taken off as a way to offer internet access in refugee homes around Germany.
A European Court of Justice advocate general issued an opinion on 16 March 2016 that called for businesses to not be held responsible if crimes are committed on their free Wi-Fi networks. Tobias McFadden was fined by Sony for an illegal music download in his store outside of Munich in 2010.
Germany has a particularly strict law that makes businesses liable for illegal activity on their Wi-Fi networks. The German government proposed a controversial new law in November 2015 that would relieve some of the liability, although only if providers offer secure encrypted networks.
- European Court of Justice: advocate general's opinion in McFadden vs Sony (16 March 2016)
- German government: draft change to Wifi law (November 2015)