Key facts of the case:
Request for a preliminary ruling — Free movement of information society services — Directive 2000/31/EC — Article 2(a) and (b) — Concept of ‘information society services’ — Concept of ‘service provider’ — Services of an economic nature — Article 12 — Limitation of liability of a provider of ‘mere conduit’ services — Article 15 — Exclusion of general obligation to monitor — Professional making a wireless local network with Internet access available to the public free of charge — Infringement of copyright and related rights by third-party users — Injunction entailing an obligation to password-protect an Internet connection
Results (sanctions) and key consequences of the case:
- In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Landgericht München I (Regional Court, Munich I) as follows:
(1) Articles 2(a) and (b) and 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) must be interpreted as applying to a person who, as an adjunct to his principal economic activity, operates a local wireless network with Internet access that is accessible to the public free of charge.
(2) Article 12(1) of Directive 2000/31 precludes the making of any order against a provider of mere conduit services that entails a finding of civil liability against that service provider. That provision therefore precludes the making of an order against a provider of such services not only for the payment of damages, but also for the payment of the costs of giving formal notice or other costs relating to an infringement of copyright or a related right committed by a third party as a result of the information transmitted.
(3) Article 12(1) and (3) of Directive 2000/31 does not preclude the granting of a court injunction non-compliance with which is punishable by a fine. National courts must, when issuing such an injunction, ensure:
- that the measures in question comply with Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and, in particular, are effective, proportionate and dissuasive;
- that, in accordance with Articles 12(3) and 15(1) of Directive 2000/31, they are aimed at bringing a specific infringement to an end or preventing a specific infringement and do not entail a general obligation to monitor, and
- that the application of those provisions, and of other detailed procedures laid down in national law, achieves a fair balance between the applicable fundamental rights, in particular, those protected by Articles 11 and 16 of the Charter of Fundament Rights of the European Union and by Article 17(2) of that Charter.
(4) Articles 12(3) and 15(1) of Directive 2000/31, interpreted in the light of the requirements stemming from the protection of the applicable fundamental rights, do not, in principle, preclude the issuing of an injunction which leaves it to the addressee thereof to decide what specific measures should be taken. It nevertheless falls to the national court hearing an application for an injunction to ensure that appropriate measures do indeed exist that are consistent with the restrictions imposed by EU law. Those provisions preclude the issuing of an injunction against a person who operates a local wireless network with Internet access that is accessible to the public, as an adjunct to his principal economic activity, where the addressee of the injunction is able to comply with it only by:
- terminating the Internet connection, or
- password-protecting the Internet connection, or
- examining all communications transmitted through it in order to ascertain whether the copyright-protected work in question is unlawfully transmitted again.