European Court Of Justice To Consider Legal Ramifications Of Offering Open WiFi

from the this-could-be-important dept

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.

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Comments on “European Court Of Justice To Consider Legal Ramifications Of Offering Open WiFi”

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mcherm (profile) says:

Open WIFI is like...

Imagine the extensive day-to-day difficulties if our existing policy of “open electricity” were replaced with a regime where every time you brought a electric drill over to your friend’s house to help put up a wall, you had to sign some sort of an indemnification form before plugging it in lest your friend be held responsible if you were to attack someone with the drill.

Anonymous Coward says:

extreme dangers of open routers

That article seems to be more focused on the corporate aspects of open wifi, offering plenty of intellectual arguments. But what about a house in a residential neighborhood, what protections are there when people (accidentally or not) leave their routers open?

Personally, I’d be scared of getting myself killed by a late-night SWAT team busting in with guns blazing, just because some neighbor’s kid three doors down did something stupid online. It would seem that common sense should dictate that the first thing police would do when tracking down an internet source would be to check if it has open WI-FI that someone else might have used to do that nefarious deed. Yet, common sense never seems to prevail when it comes to police raids (or maybe SWAT cops are hungry for any excuse to bust down doors and test their shooting skills)

Many innocent people who were dragged into the RIAA’s mass-lawsuit campaign because of having an open router found that the only way to stop the lawsuit (other than coughing up the $4000 extortion money demanded) was to turn in all their computers to be forensically searched for illicit material. It’s conceivable that anyone who might have had something else on their PCs that was embarrassing (like a church pastor who watches homosexual porn) might have paid the RIAA’s ransom just to keep their computers away from prying eyes.

In the current legal environment, leaving your home router unlocked is so potentially dangerous that only the most naive and uninformed person (or those with a death wish) would ever do it on purpose.

John Fenderson (profile) says:

Re: extreme dangers of open routers

I guess I’m a naive, uninformed person with a death wish, then? I intentionally run an open hotspot (i have been for about 10 years now), and I share none of your fears.

Yes, it’s possible that I could come under legal scrutiny due to how someone else uses my WiFi, but I’ll cross that bridge if I ever get to it.

tqk (profile) says:

"Open WiFi" is a complex topic

I’m sympathetic to this article’s intent, but don’t forget the downside. It also enables spammers and malware distribution, malicious hacking, & etc.

When tyrants like Turkey’s Erdogan can just shut off Twitter access any time they get their knickers in a knot, it’s deplorable. At the same time, there are estimates saying that ca. 80% of the traffic on the net is spam and malware.

What to do?

Mike Masnick (profile) says:

Re: "Open WiFi" is a complex topic

I’m sympathetic to this article’s intent, but don’t forget the downside. It also enables spammers and malware distribution, malicious hacking, & etc.

It doesn’t “enable” that. Those things happen with or without open WiFi.

When done right, there shouldn’t be much risk:

Anonymous Coward says:

Re: "Open WiFi" is a complex topic

Twitter shutdown is a completely separate issue to open wifi. It is not gonna be more or less of an issue for Erdogan as long as he hits the ISPs.

Spam is a different issues. Spam is very easy anyway, but setup can do a lot to discourage it. Malware is not going to be that much more difficult to trace down anyway, since the backtrace of routing can be disguised so well through other means.

Yes, open wifi will encourage wannabes and other fools to try and spread the poison of the internet, but they will likely discover that it is not easier to do that on a well setup open wifi network, than it is through any other access point.

Anonymous Coward says:


I dump all my open wifi into Tor. This probably doesn’t help my guest’s privacy, but it will make it easier to track them down than to track me down. It’s not 100% safe, and I’m guessing it could be hacked. But it’s probably easier to hack the passwords on my closed wifi if you really want to get in.

John Fenderson (profile) says:

Re: Tor

I like this idea a lot! What I do with my open WiFi is to limit the amount of bandwidth that can be used, and to ensure that WiFi traffic doesn’t route to my LAN unless it goes through my VPN.

I also keep my router logs so that should I be involved in an investigation regarding the use of my open WiFi, I can demonstrate with a high level of confidence that the use wasn’t mine. But, as I mentioned in a different comment, in the 10+ years I’ve been doing this, there has yet to be an issue of any sort whatsoever.

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