Watch out for pitfalls of offering open-access free public wi-fi

WITH our greater dependence on smart devices comes a near obsession for free public wi-fi. Whether it is to “check-in”, share a photo, pre-order a coffee or pay a bill, when abroad or where 4G networks are slow, it is a requirement for modern living.

But such is the need for free services when logging on to them, little or no thought will be given to the person or business who is supplying them and/or how it is being used.

Recent court decisions discussing free public wi-fi have served as a reminder that it can have some pitfalls. This was highlighted in a litigation involving a shopkeeper, Mr Tobias McFadden and Sony Entertainment’s German corporation. Mr McFadden, operator of a sound and lighting shop, attempted to attract customers by offering complimentary wi-fi. The wi-fi service was open, which meant it did not require a password to access it and could be used by all who were in the shop’s vicinity.

However, in 2010 Mr McFadden’s wi-fi network was used to upload a song of which Sony owned copyright.

As a result, Mr McFadden was served with a notice from Sony making him aware of its rights. After receiving this information, rather than prevent a recurrence, or wait for Sony’s next step, he raised proceedings asking the court to declare that he was not liable for the alleged infringement of Sony’s rights.

The question for the Court of Justice of the European Union (CJEU) to consider was in essence whether Mr McFadden (and, indeed, other suppliers of free wi-fi services) could rely on the “mere conduit” exemption in Article 12(1) of the E-Commerce Directive (2001/31/EC).

Article 12(1) states the following: “Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.”

The CJEU decided Mr McFadden was able to rely upon this exemption, as the wi-fi he was offering came under the umbrella of an “information society service”.

However, whilst the CJEU found that Mr McFadden and other intermediaries could not, in these circumstances, be found liable for the infringements of third parties, and as a result could not be liable for costs or damages, rights holders can still seek injunctive relief to end or prevent the infringement.

In addition, the injunctive order could force the wi-fi provider to secure the network by way of a password and thereafter only supply that password to those who provided details of their identity.

This, however, may cause issues in relation to the right to privacy under Article 7 and how network providers are to store this information with reference to the Data Protection Act.

This case will be of great interest to all businesses who offer a free wi-fi service, especially landlords and employers. Megan Briggs is senior solicitor at Burness Paull