Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(a) of that directive and Article 1(2) of Directive 98/34, to be interpreted as meaning that the expression 'normally provided for remuneration' means that the national court must establish: a. whether the person specifically concerned, who claims the status of service provider, normally provides that specific service for remuneration, b. whether there are on the market any providers at all who provide that service or similar services for remuneration, or c. whether the majority of these or similar services are provided for remuneration?

A service is an 'information society service' if performed for economic purposes, even if users do not pay directly.

Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that the expression 'provision of access to a communication network' means that the only criterion for provision in conformity with the directive is that access to a communication network (for example, the internet) should be successfully provided?

Providing access must not exceed a technical, automatic, and passive process for transmitting information.

Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, to be interpreted as meaning that, for the purposes of ' anbieten ' ('provision') within the meaning of Article 2(b) [of that directive], it is sufficient for the Information Society service to be made available, that being, in this case, the making available of an open [wireless local area network] WLAN, or is 'advertising', for example, also necessary?

No additional advertising requirement exists; access must be provided technically, automatically, and passively.

Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that the expression 'not liable for the information transmitted' precludes as a matter of principle, or in any event in relation to a first established copyright infringement, any claims for injunctive relief, damages or the payment of the costs of giving formal notice or court costs which a person affected by a copyright infringement might make against the access provider?

Providers are shielded from liability claims for damages but not from injunctive relief to prevent continued infringement.

Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, to be interpreted as meaning that the Member States may not permit a national court, in substantive proceedings, to make an order requiring an access provider to refrain in future from enabling third parties to make a particular copyright-protected work available for electronic retrieval from an online exchange platform via a specific internet connection?

Member States may allow courts to order providers to prevent future infringements, provided technical measures are possible.

Is the first half-sentence of Article 12(1) of Directive 2000/31 to be interpreted as meaning that, in circumstances such as those in the main proceedings, the rule contained in Article 14(1)(b) of Directive 2000/31 is to be applied mutatis mutandis to an application for a prohibitory injunction?

Article 14(1)(b) conditions do not apply to Article 12(1); different liability exemptions exist for hosting and access provision.

Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive to be interpreted as meaning that the requirements applicable to a service provider are limited to the condition that the service provider be any natural or legal person providing an Information Society service?

No additional requirements are imposed, beyond being a natural or legal person providing an information society service.

If the seventh question is answered in the negative, what additional requirements must be imposed on a service provider for the purposes of interpreting Article 2(b) of Directive 2000/31?

No additional requirements are imposed beyond those stated in Article 12(1) and Article 2(b).

Is the first half-sentence of Article 12(1) of Directive 2000/31, taking into account the existing protection of intellectual property as a fundamental right forming part of the right to property (Article 17(2) of the Charter of Fundamental Rights of the European Union) and the provisions of Directives 2001/29 and 2004/48, and taking into account the freedom of information and the fundamental right under EU law of the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union), to be interpreted as not precluding a national court from deciding, in … proceedings in which an access provider is ordered, on pain of payment of a fine, to refrain in the future from enabling third parties to make a particular copyright-protected work or parts thereof available for electronic retrieval from an online (peer-to-peer) exchange platform via a specific internet connection, that it may be left to the access provider to determine what specific technical measures to take in order to comply with that order?

Court can order providers to prevent infringements, allowing them to choose technical measures, respecting rights balance.

Does this also apply where the access provider is in fact able to comply with the court prohibition only by terminating or password-protecting the internet connection or examining all communications passing through it in order to ascertain whether the particular copyright-protected work is unlawfully transmitted again, and this fact is apparent from the outset rather than coming to light only in the course of enforcement or penalty proceedings?

Providers may choose technical measures like password-protection, ensuring users reveal identity, not general monitoring.

Free WLAN can be an 'information society service' if it serves economic interests.

European Court of Justice (Third Chamber) · 15 september 2016 · Judgment · Preliminary ruling

‛Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the network — Infringement of rights of rightholders over a protected work — Duty to secure the network — Tortious liability of the trader’

Rechtsvraag

Whether a service provider operating an open wireless network, allowing unauthorized distribution of copyrighted material, can be held liable under Article 12(1) of Directive 2000/31/EC, and whether they must implement measures to prevent such infringements.

Regel

Article 12(1), Directive 2000/31/EC (E-Commerce Directive) (Exemption from liability for mere conduit service providers)
Article 12(3), Directive 2000/31/EC (Allows courts to order service providers to prevent or terminate infringements)
Article 2(a), Directive 2000/31/EC (Defines 'Information Society services')
Article 1(2), Directive 98/34/EC (Defines 'Information Society service' as normally provided for remuneration)

Conclusie

The court concluded that Mr. Mc Fadden is exempt from liability as a service provider under Article 12(1) of Directive 2000/31/EC, as he did not control the transmitted information. However, he can be required to take measures, like password-protecting his network, to prevent further copyright infringements, ensuring a balance between intellectual property rights and the freedom to conduct a business.

Tijdlijn

22-06-1998 The European Parliament and the Council adopted Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services.
08-06-2000 Directive 2000/31/EC on certain legal aspects of information society services, particularly electronic commerce in the internal market, was adopted by the European Parliament and the Council.
09-09-1965 The Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz) (Law on copyright and related rights) was enacted in Germany.
26-02-2007 The Telemediengesetz (Law on electronic media) was enacted in Germany, transposing Articles 12 to 15 of Directive 2000/31 into national law.
04-09-2010 Mr. Mc Fadden changed the name of his wireless network to 'freiheitstattangst.de' in reference to a demonstration for data protection.
04-09-2010 A musical work was made available on the internet free of charge through Mr. Mc Fadden's WLAN without the consent of the rightholders.
29-10-2010 Sony Music gave formal notice to Mr. Mc Fadden to respect its rights over the phonogram.
18-09-2014 The Landgericht München I (Regional Court, Munich I, Germany) made a request for a preliminary ruling under Article 267 TFEU.
03-11-2014 The Court of Justice of the European Union received the request for a preliminary ruling.
09-12-2015 The Court conducted a hearing regarding the preliminary ruling request.
16-03-2016 The Advocate General delivered an opinion at the sitting.
15-09-2016 The Court delivered its judgment regarding the preliminary ruling request in Case C-484/14.