Businesses that provide free and open Wi-Fi to customers are not liable for copyright infringements committed by users of that network, a top legal adviser to the Court of Justice of the European Union (CJEU) has decided.

Advocate General Maciej Szpunar's opinion (PDF) is not binding on the final ruling of the CJEU, but is generally a good guide to what the court will decide when it hands down the definitive judgment.

However, the Advocate General ruled that national courts may issue injunctions against the provider of free Wi-Fi services in the case of copyright infringement provided they are "particular, effective, proportionate and dissuasive"; and "that they are aimed at bringing a specific infringement to an end, and do not entail a general obligation to monitor." Moreover, courts must strike a fair balance between "freedom of expression and information and the freedom to conduct business, as well as the right to the protection of intellectual property."

In particular, the CJEU legal adviser said that an obligation to make access to a Wi-Fi network secure using passwords, as a means of protecting copyright on the Internet, would not strike a fair balance, since it would entail a restriction on freedom of expression and information. The Advocate General went on: "any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the Internet, could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightholders."

If the CJEU agrees with the Advocate General's opinion, it will provide important protection for casual suppliers of open Wi-Fi connections, such as those found in hotels or cafés.

One of the key issues the case needed to determine was whether this kind of public Internet connection qualified for protection under the EU's Directive on electronic commerce, which precludes any indirect liability for service providers, who are considered "mere conduits" for information. The Advocate General ruled that in order to enjoy this protection under the Directive, "it is not necessary for the person in question to present himself to the public as a service provider or that he should expressly promote his activity to potential customers."

The case concerned a business selling and renting lighting and sound systems near Munich, which also offered a Wi-Fi network accessible to the public. In 2010, a musical work was "unlawfully offered" for downloading via that Internet connection, and Sony brought a case against the shop owner before the local court. Because of the important legal questions raised, the case was referred to the CJEU for its opinion. This is expected at "a later date" according to the EU's top court, but there are no indications when that might be. After that, the case will return to the German court for judgment in the light of the CJEU ruling.