R.T.I., the television arm of Italy's Mediaset group (i.e. the Berlusconi television group), brought an interim injunction before the Court of Rome against YouTube LLC, YouTube Inc. and Google UK Ltd. with reference to some videos reproducing the 10th edition of the reality television show named "Grande Fratello" (Big Brother) published on YouTube and Google Video platforms. In particular, R.T.I. alleges that such conduct is in breach of their rights on those videos and on the trademarks and domain names relating to the sign "Grande Fratello".
The court held on one hand that according to Article 15 of the E-Commerce Directive, as implemented in Italy, providers are not obliged to monitor the contents published on their websites by their users since this would lead to their "unacceptable objective liability" (i.e. a liability that is not due to a negligent or wilful misconduct). However, on the other hand it also added that the applicable laws and case laws:
"make a provider liable when it does not merely provide a connection to the Internet, but offer additional services (e.g. caching, hosting) and/or performs checks of the information and especially when either it is aware of suspicious material and does not check its unlawfulness and removes it or it is aware of its unlawfulness and does not act"
On the basis of this reasoning, the court ordered the defendants to immediately remove from their servers and consequently to promptly disable the access to any content reproducing images concerning the 10th edition of the "Grande Fratello".
This decision is interesting since the court making reference to the performance of caching and hosting services by Internet service providers completely ignores Articles 13 and 14 of the E-Commerce Directive which expressly set up a liability exemption regime for providers of caching and hosting services. Moreover, the court also ignores the continuous requests sent by Google to R.T.I. aimed at obtaining from the latter the codes of the videos that they require to remove which have never been provided by R.T.I.. Indeed, from a search on www.youtube.com using the words "grande fratello", a huge amount of results pop up. YouTube cannot obviously remove all of them since some of these videos might not in breach of R.T.I.'s rights (e.g. home made videos merely named "grande fratello") and some of them might not relate to the 10th edition of the "Grande Fratello" subject of R.T.I.'s claim.
The removal of all the videos subject of R.T.I.'s claim would require indeed the use of enormous resources by YouTube that it not obliged to invest since, according to the E-Commerce Directive, providers are not obliged to monitor the contents published by their users.
We will see what the next steps of this "saga" will be.
4 comments:
Resources and tools are already provided
to index any text in title field
and remove it from circulation and indexing,
public access.
Easy job developed by Google and others,
in commong use for the last 20 years on the Internet.
Dear Darius,
Thanks for your comment. Maybe I was not enough clear in my post.
Google was willing to remove the videos on which RTI claimed its rights and requested several times RTI to provide the identification codes of such videos to be able to identify such videos and remove them. However, RTI has never replied to such requests!
As stressed in my post, Google cannot remove all the videos that appear from a search using the words "grande fratello" since RTI might not hold any right on some of these videos and because RTI's claim referred only to the 10th edition of the show which means that they did not request the removal of the videos concerning the previous editions of the same show.
I believe that the request from RTI would imply the use of huge resources by YouTube since it shall check one by one all the videos posted on the platform that "might" have contents extracted from the 10th edition of the Big Brother with the risk that this practice is accurate and might lead to the removal of non-infringing videos.
Finally, the E-Commerce Directive expressly states that hosting providers (including YouTube) are not obliged to monitor the contents published by their user and the reasoning behind this provision is that it is impossible for them the performance of such monitoring activity because a huge amount of information is published every second on their platforms.
Indeed, I believe that the court completely ignored the provisions of the E-Commerce Directive and their rationale.
IMHO, this ruling has NOTHING to do with the law, but instead corruption, politics and greed. Namely the greed of the Italian Prime Minister, Berlusconi. Giulio, being in Rome, do you not see this as part of the reasoning for a decision like this?
Essentially, to me this is either a personal play for power, money or both by Berlusconi. It does not surprise me AT ALL. Every Supreme Court judge is in his pocket, he owns the almost all major media outlets in the country. I'm not a lawyer but I don't think this is a credible legal opinion you should try and rationally understand.
For those not aware of the political and personal history of Silvio Burlesconi and think that I'm overreacting, do some research on him over the last 15 years. Fixed elections, quashing other Italian media outlets, sex scandals, suppression of free speech to further his conglomerate, fixing court cases, including those brought against him personally, mafia ties, the outrage by the other EU countries when it was Italy's turn to head up the union. It goes on and on....search Google for "berlusconi corrupt" and prepare to read for a while, it really is quite an amazing story.
Hi Paul,
Thanks for your comment. I confirm that this decision has raised lots of negative comments from Internet law experts.
Indeed, it is very surprising that the court did not take into account the efforts made by YouTube which was willing to remove the challenged videos and to this purpose required in several instances RTI to provide a list of such videos without receiving any answer from them.
I will monitor "very closely" the next steps of the proceeding and keep you posted.
Best,
Giulio
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