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Internet liability rules don’t oblige telecom and Internet providers to monitor their traffic and automatically remove contents in breach of copyright according to the Court of Milan.
This is a very interesting article from my intellectual property law colleagues Sara Balice and Sofia Barabino, I am sure you will enjoy it!
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The saga on the Internet liability rules applicable to Internet Service Providers (ISPs) for the contents published by third parties has been discussed in a number of articles on this blog, but this is one of the first cases on the liability for “mere conduit“.
The facts of the Court of Milan case
On July 2016, the Court of Milan set out important principles relating to ISPs liability in a very interesting case involving one of the main Italian TV broadcasters, Mediaset Premium (MP), and a number of major ISPs and their association – some of which have been assisted by our firm.
For three years, the website “Calcion” broadcasted through streaming technology on the web football games which could exclusively be transmitted by MP on pay-tv. After every blocking order obtained by MP before AGCOM (Italian Authority for Communications) according to the new notice and take down procedure provided for copyright breaches occurring on the Internet, Calcion circumvented the order by operating the “Calcion” website under a new top-level domain (calcion.me, calcion.eu, calcion.tv, calcion.md, calcion.in, calcion.co, calcion.pw, calcion.xyz, calcion.be and, lastly, calcion.at).
MP eventually filed an application before the Court of Milan involving a number of major ISPs in order to obtain
a blocking injunction against calcion.at, as well as any top-level domain and IP address that in the future would be associated with Calcion.
ISPs were of course not in favour of Calcion activity and complied with each blocking order. However, they objected to MP’s request to block access to all future associated websites and IP addresses as this would impose on them a general monitoring obligation, which is contrary to the law.
The Internet liability rules applicable to mere conduit providers
Internet liability rules are set out in Italy by the rules implementing the eCommerce Directive. Both the Directive and its implementation exclude the Internet liability for “mere conduit” service providers (i.e. ISPs which simply provide access and/or transmission in a communication network) for the information transmitted, without prejudice to the possibility for a court or administrative authority of requiring them to terminate or prevent an infringement.
In particular, ISPs do not have a general obligation to either monitor the information they transmit or store or to seek facts or circumstances indicating illegal activities. They shall instead promptly inform the competent authorities of alleged illegal activities carried out by recipients of their services and communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
The decision of the Court of Milan
The Court of Milan issued a blocking order for calcion.at, but rejecting the remaining MP’s claim holding that a general monitoring obligation cannot be imposed on ISPs.
Also, even if MP had undertaken to indicate any future website or IP address associated with Calcion, so that ISPs will not need to monitor the traffic, MP’s request is unacceptable for procedural reasons. In particular, the order sought, if granted, would be devoid of self-sufficiency since it would allow a private party to verify the content of certain websites in order to evaluate whether they are infringing or not a party’s right, a task reserved to courts and public authorities.
Furthermore, since an IP address may host more than one website, it is possible that the IP addresses indicated by MP host also lawful websites. An adequate balance of interests between the protection of intellectual property rights and other fundamental rights such as freedom of enterprise, the right to information and freedom of expression has to be carried out by the court or the public authorities.
This is an important decision that will likely influence the relationship between copyright holders and ISPs. And if you want to discuss it further you can contact Sara Balice and Sofia Barabino.
