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14 August 2008
According to recent press reports, Italian television network Mediaset is suing Google and video-sharing website YouTube for €500 million in damages before the Court of Rome. Mediaset alleges that YouTube and Google have made illicit use of its property - namely, 4,000 audiovisual clips. Mediaset is also claiming damages for lost advertising revenue for slots in television programmes available on YouTube. The claim raises significant questions about the liability of internet service providers (ISPs) and is expected to spark vigorous debate among media and internet stakeholders.
Italy transposed the EU E-commerce Directive (2000/31/EC) by passing Decree 70/2003. The directive attempts to remove the legal uncertainty surrounding ISP liability by introducing a principle whereby ISPs are deemed subjectively rather than objectively liable. However, the directive imposes no general obligation on ISPs to monitor user-generated content or investigate potentially illicit activities. Thus, a judge can find an ISP liable only if it is directly at fault or if it has acted fraudulently.
The decree excludes ISPs from liability where they have played a passive role in transmitting information from a third party. It also limits the liability of providers of other intermediary services, such as information storage. Thus, providers of infrastructure services and access services cannot be held liable for the information that they transmit, provided that they do not initiate the transmission and do not determine either the recipient of the transmission or the information it contains.
Italian legislation follows the directive in grading ISP liability according to three levels of activity: conduit services, caching and hosting. However, the decree states that a judge or other competent administrative authority may nonetheless require website operators to report potentially illegal activities on the Internet without delay. Such competent authorities may also require providers of hosting services to supply the information needed to identify the owners of the hosted webpages.
Before the decree came into force, Italian courts frequently found ISPs liable for illegal content because they were the only identifiable party connected with such content and thus the only party from which the injured party might claim compensation. In practice, it is often impossible to discover an internet user's identity or personal data.
In early ISP liability cases in Italy, plaintiffs often attempted to claim that:
However, since 2006 the courts have tended towards the exclusion of general liability and the removal of any general obligation on ISPs to monitor website content or investigate potentially illegal activity. Rather, judges have assessed liability on a case-by-case basis:
As these decisions demonstrate, judges have adopted a case-by-case approach in determining ISP liability, assessing the real degree of control that the ISP was able to exercise over website content and user-generated content.
The number of lawsuits against ISPs seems certain to increase with the spread and growing importance of websites and other media platforms that publish user-generated content and offer peer-to-peer services. It remains to be seen whether existing Italian law on ISP liability is adequate or whether legal uncertainty will remain; in these respects, Mediaset's action could prove a useful test case.
Mediaset seems to have an arguable case under copyright law. What is more difficult to understand is the exorbitant sum claimed in damages. Mediaset seems to be basing this claim for damage on loss of audience, a factor often invoked in disputes over television programme rights. However, it might be argued that the television programmes from which the YouTube clips were taken had already been broadcast on at least one of the three Mediaset channels, and Mediaset may be required to prove that it had planned to air the programmes again in future.
For further information on this topic please contact Francesca Besemer at Portolano Colella Cavallo Studio Legale by telephone (+39 06 3974 5437) or by fax (+39 06 3974 5400) or by email (firstname.lastname@example.org).
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