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.