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The Italian Criminal Court of Cassation issued a very interesting decision on defamatory comments published in an online forum.
To give you a bit of background information, Italian press law prescribes that directors of editorial products (e.g. a journal, magazines, newspapers) are objectively liable for any content published on them even if they had no knowledge of the illegal material. The definition of editorial products includes also online products such information websites.
This provision has been subject to considerable complaints because in several instances courts and public prosecutors have tried to extend its applicability to Internet hosting providers and these attempts would be in contrast with Articles 14 and 15 E-Commerce Directive according to which hosting providers are not obliged to monitor the contents (e.g. comments, videos etc.) published by their users and are not liable for them provided that they do not have actual knowledge of the illegal activity/information and – upon obtaining such knowledge – they act expeditiously to remove it or disable to access to it.
The Court of Cassation clarified that the accessibility of comments in a online forum by any Internet users does not make them fall under the definition of press materials and consequently the liability regime applicable to directors of editorial products is not applicable in such circumstance. Editors of forums, blogs, journals etc. will not be liable for the comments made by their users as soon as they are not aware of them and upon obtaining such knowledge promptly remove them. Moreover, it is possible to argue that the same reasoning is applicable to any content published by users on websites.
This is a very relevant decision that is in contrast with the approach repetitously adopted by Italian courts on similar matters. Feel free to contact me, Giulio Coraggio, if you need any advice on the regime applicable to contents published on your website.
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