— last modified 15 September 2016
The European Court of Justice (CJEU) has today rightly confirmed that public WiFi hotspots do indeed benefit from the liability protections that have been essential to the growth of the European digital economy.
Specifically, in the ‘McFadden’ case the Court has found that operators of free public Wi-Fi cannot be held liable for copyright infringements committed by users of their networks.
This assessment represents a crucial interpretation of the EU E-Commerce Directive, the legal basis that the European legislator has repeatedly identified as being key to the development of Internet technologies in Europe.
Moreover, the Court rightly considers copyright as just one of the many fundamental rights of EU citizens, one that can only be enforced as part of a balanced approach that reflects the importance of competing rights. In particular, it strongly vindicates the right to privacy of communications, by precluding the providers of Internet services from undertaking general surveillance of user activities on their network in search of copyright-infringing content.
EuroISPA notes that the ruling foresees the potential of injunctions obliging operators to password protect their networks and obtain user identification before network access. In this regard, it is essential that national courts follow the finely-balanced reasoning of the CJEU, and order such injunctive relief only in those instances where there is demonstrable and serious risk of repeat infringements. The fair balancing of the rights of copyright holders and those of consumers, businesses and the general social good is essential for the expansion of the European Information Society.
Ultimately, EuroISPA is hopeful that today’s court ruling will prove instructive to EU-level lawmakers as they begin reflect on a reform of the EU copyright framework. The Court’s reasoning in this case implies that a number of the measures proposed by the Commission to enhance copyright protection online ? including by forcing hosting providers to monitor their network for infringing user-uploads ? will violate the existing legal provisions underpinning the European digital economy.
EuroISPA Intermediary Liability committee chair Malcolm Hutty said: “Today’s CJEU ruling further strengthens the consensus that copyright enforcement measures must be assessed in context of competing fundamental rights and the social good.”
