April 26 2010
On February 11 2010 the Court of Rome upheld an order issued on December 15 2009, thereby recognizing the liability of hosting services providers - in this case, the video-sharing website YouTube - for the infringement of IP rights on the Internet.
The decisions were based on the provisions of the EU E-commerce Directive (2000/31/EC), which clearly state that internet services providers (ISPs) will not be held liable for illegal activities carried out by a user of their services unless they were aware of the illicit nature of the activities. The directive also provides that the exemptions from liability will not apply to ISPs that:
The court held that in order to establish the liability of ISPs, two points must be established.
First, it is necessary to consider whether the illegal activities continued despite several warnings. Thus, the court rejected the idea that an ISP cannot be held responsible because its only function is to store information at the request of a recipient of its service.
Second, a court must consider whether the ISP was able to monitor its users' activities and remove publications of a pornographic nature; if so, an ISP is thus able to prevent the publication of infringing material.
The court pointed out that the liability of ISPs should be assessed on a case-by-case basis. However, liability will arise where the ISP was aware of the presence of suspicious material, but refrained from removing it or from taking any other action. The court clarified that, in this specific case, the illicit activity was not compatible with the mere storing of information.
In an earlier case involving illegal downloads of copyrighted works through a peer-to-peer website, the Criminal Division of the Supreme Court held that the website's owner was liable because it had supplied, "through a search engine or through indexed lists", information provided by certain users that was essential for other users to download the works.(1)
Italian case law thus shows that it is possible to protect:
This is in line with the objectives of the directive, which aims to balance the interests of the various parties involved. It also appears to be consistent with the recent European Court of Justice's Google AdWords decision,(2) in which held that:
"in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores."
Particular importance will be attached to the role played by the service provider "in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant."
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