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Yesterday, the Court of Justice of the EU confirmed that under the Directive on electronic commerce, providers of public Wi-Fi networks cannot be held liable for copyright infringements committed by users of the network, provided that the provider has not (i) initiated the transmission, (ii) selected the recipient of the transmission, and (iii) selected or modified the information contained in the transmission.

However, the exclusion of liability does not preclude a copyright holder from seeking injunctive relief against the provider in order to cease the infringement. The Court of Justice further states that an injunction ordering the network to be protected by e.g. a password which the users obtain after having revealed their identity, is a reasonable measure to deter copyright infringers from using the network and that such injunction may be ordered under penalty of a fine. The network provider is however not required to monitor any information sent over the network nor required to immediately suspend users of the network suspected of infringements.

What we can take away from this is that, even though the liability for damages for providers have been limited, there is still good reason for providers of free Wi-Fi access to take reasonable security measures in order to limit the risk of copyright infringements on their networks, such as having the Wi-Fi protected by password and require registration and acceptance of terms of use.

Full text of the judgement can be found here.

If you want to know more, please contact Fredrik Ståhl, Head of Intellectual Property.