Abstract

A growing number of business operators offer free Wi-Fi Internet access as ancillary service to promote their main commercial activity. In the light of the recent ECJ judgment in Mc Fadden, this paper reflects on a series of issues related to the liability of these Internet intermediaries in case of intellectual property infringements. The aim of this paper is to demonstrate that the regulatory framework of Internet access providers is obsolete, and urgently needs to be updated. Firstly, it illustrates to what extent this economic model subverts the notion of information society service. It warns that the current normative framework unfairly excludes Wi-Fi Internet access providers that do not conduct an economic activity from the liability exemption in case of intellectual property infringements. In addition, it acknowledges that the obligations that national authorities can impose on intermediaries in case of infringements blur the boundaries of business operators’ liability exemption regime. Finally, it contends that the measures suggested by the ECJ to prevent infringements are impractical, and do not ensure a fair balance of the fundamental rights involved.