CJEU confirms indirect liability as Störer for open, anonymous Wi-Fi-networks

Press release of the law firm WALDORF FROMMER, September 15, 2016

Today the CEJU delivered its landmark decision in the McFadden Case (C-484/14). The highest European court took a firm stand against the Advocate Generals’ opinion and made some ground-breaking statements.

The decision is based on the following facts of the case: The proprietor of a shop for lighting and sound equipment intentionally provided an open Wi-Fi network on his business premises to the public. In 2010, a music album was made available to the public per filesharing via this Wi-Fi network. The shopkeeper pleaded that he did not personally commit this copyright infringement. Instead, he argued not to be liable for this infringement allegedly committed by an anonymous user of his Wi-Fi network and filed an action for a negative declaratory judgement (negative Feststellungsklage). In 2014, the regional court of Munich (Landgericht München I) stayed the proceedings and referred a comprehensive catalogue of 9 questions to the Court of Justice of the European Union in Luxembourg. The law firm WALDORF FROMMER represented the right holder in the main proceedings as well as in front of the Court of Justice of the European Union.

With respect to the verdict at hand, especially regarding some apparently premature and not adequately informed press reports, the following should be noted:

The CJEU explicitly clarifies that the provider of a commercial Wi-Fi network – irrespective of his knowledge of possible infringements – can be obligated to password – protect the internet connection and require the users to reveal their identity. In any case, he must not provide the network unrestricted to anonymous users in order to safeguard the protection of intellectual property. The liability as so called Störer that has been acknowledged in Germany for a long time is therefore not overturned ...

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