EU court says no liability for no-password Wi-Fi is OK

Open Wi-Fi in Europe could see massive growth now after a top legal official says café owners aren’t liable for the iffy activities of patrons

If you’ve ever wondered why some countries have more open Wi-Fi hotspots than others—Germany has very few—it’s because some places have laws that make a Wi-Fi network owner liable for the illegal activities of network users. Operating the no-password, free network isn’t worth the liability.

That may be about to change with an opinion from a senior legal official advising lawmakers that hotpsot owners should not be liable for illegal activity.

The non-binding, but important opinion is from Advocate-General Maciej Szpunar of the European Court of Justice, the highest court in Europe.

The David and Goliath-led beginning-of-the-end for open-hotspot-barren parts of Europe started when Sony Music Entertainment sued a German store owner for supposedly allowing a customer to Torrent a song on his network, according to World Intellectual Property Review, who has written about the matter.

Tobias McFadden, the shop owner, didn’t require a password for customers to use his Internet.

McFadden said he wasn’t liable for the Torrenting upload because he didn’t do it, and so wasn’t going to be giving Sony the demanded fine. The case ended up at the European Court of Justice in Luxembourg.

Top honchos there agreed with McFadden. The operator is not liable, those experts now say.

“The operator of a shop, hotel or bar who offers a Wi-Fi network free of charge to the public is not liable for copyright infringements committed by users of that network,” says Szpunar in the court’s press release.

Like a telco, the bar owner, or premises owner is not the person who committed the infringement, the court logically thinks. And there is also no requirement to make the network secure, it goes on to say in its press release.

One of the grey-area implications for the likely upcoming new EU rule is that the café hotspots become hotspots of illegal activities, such as copyright infringement and terrorism planning.

Untraceable burner SIM cards and phones—an alternative way of obtaining Internet to cafes—can be tricky to obtain some places. In France a storefront vendor once made a photocopy of my passport when he sold me a Pay-as-you-go SIM card there. The records presumably stored somewhere.

It’s recently transpired, from reported police reports, that the terrorist attacks in France were coordinated with a mass of obtained-anyway burner phones. So will untraceable, unfettered café-supplied Internet access be welcomed by terrorist cabals possibly situated in smoky vehicles across the street, or anonymously huddled on the steps of tourist landmarks sniffing for non-password protected signals from nearby clip-joint restaurants? Maybe. Criminals could conceivably be getting new venues for their evil plotting.

The good news is that the entertainment industry has made great strides in educating the public that intellectual property theft is wrong—they had no idea a few years ago. Plus streaming media services have become more wide-reaching, and downloading less popular as bandwidth for streaming, and thus quality, has increased overall. I wrote about BitTorrent’s sharp North American decline in December.

More good news is that VPN sales could skyrocket if open hotspots become more prevalent. As individuals embrace open hotspots, security will become more important.

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