Internet liability rules overturned again

Internet liability rules suffered a “back to the past” effect in Italy after the decision of the Court of Rome, despite of the recent position of European courts on the matter.

The recent case law on Internet liability

The decision of the European Court of Justice on the SABAM case had held that hosting providers cannot be obliged to put in place a general filtering system relating to potential future breaches of copyright protected material.

On the basis of such decision, the Court of Appeal of Milan in a case involving Yahoo! had taken the view that

1. There is no monitoring obligation on hosting providers in line with the principle set out by the EU eCommerce Directive;
2. There is no “active” hosting provider and the fact that the Internet service provider offers services to organize contents published by its users does not change its role;
3. A hosting provider is obliged to remove the challenged material following a mere notice from the entity that alleges to be the rights’ holder, but the burden of proof of identification of the challenged material is indeed on the rights’ holder; and
4. There is no filtering obligation on future contents published by users.

The decision of the Court of Rome on Break.com

Despite of the above decision, the Court of Rome held in a case relating to videos of TV programs broadcast on Mediaset TV published on the website break.com that

1. The liability exemption prescribed by the EU eCommerce Directive for hosting providers does not apply to break.com since the ISP is an “active” hosting provider organizing the contents published by its users;
2. In line with the SABAM case, break.com cannot be obliged to monitor the contents published on its platform;
3. Break.com is liable if it does not take down the contents and disable the access to them when it becomes aware of them through a mere notification or other manners which according to the court does not need to list the URLs where the videos are made available; and
4. Despite Italian law implementing the EU eCommerce Directive links the take down obligation to the issue of a court order rather than the mere knowledge of the illegal contents, the court held the take down obligation is triggered by the actual knowledge of the illegal contents by means of a notice or through other modalities.

Based on the above, the court

• issued an interim injunction prohibiting the continuation of the challenged conduct and providing a fine of € 1,000 per day in which the videos are still available on the platform; and
• ordered break.com to pay a refund of € 115,000 for the past breaches plus legal fees.

What future for Internet liability rules?

The current situation in relation to Internet liability rules appears quite uncertain. The SABAM case seemed to be a “turning point” on the matter, but the Court of Rome reintroduced principles prescribed by previous court decisions.

Hopefully the higher courts will clarify the matter. Also, it is expected that the decisions from the Communications Authority on the basis on the new notice and take down procedure for copyright breaches on the Internet will affect also the position of the competent courts.