Community wireless networks, intermediary liability and the McFadden CJEU case

This article focuses on the possible implications of the McFadden decision by the Court of Justice of the European Union (CJEU) on the development and sustainability of community networks (CNs). CNs provide internet connectivity through open wi-fi, normally based on distributed infrastructure and wireless technologies, that enable users to create an open, community owned and run, network.

CNs constitute a grassroots alternative to commercial internet service providers (ISPs): as infrastructure commons, they have the potential to be participatory, democratic, and more respectful of communications privacy.

The possibility of offering open wi-fi is one of the main issues at stake in the McFadden case. This article explains how the CJEU decision is likely to affect the fate and the design of CNs. Particular attention is paid to the effect of the decision on the organisational shaping of CNs in Europe and structural changes CNs may have to consider implementing:

(a) the donation policy, the fee or absence thereof, as the decision refers to the commercial status of providers;

(b) the legal status (network operator, intermediary, internet service provider) and the existence of a legal representative, or the absence thereof in the case of very decentralised CNs;

(c) possible warranties and disclaimers contained in the service Terms of Use;

(d) the technological decentralised architecture, impacting and impacted by possible password, data retention and registration obligations.

After describing what are CNs and how they work (part 2), the article presents the liability challenges for CNs and in particular the hurdles to assign liability (part 3) and the specific situation of the ‘Störerhaftung’, the legal doctrine that provides that a wi-fi operator is responsible for users’ wrongdoings in Germany, the jurisdiction of origin of the McFadden case. The article then analyses in detail the McFadden decision (part 4) and its implications for the organisational shaping of CNs according to selected design features (part 5). It finally draws some conclusions on future scenarios (part 6).