By Giancarlo Frosio on July 27, 2014 at 5:54 am
As reported a few days ago, Italian courts have been very active in the last few weeks in reviewing liability of online intermediaries. Recently, another Italian court issued a decision addressing the Wikimedia’s standing in Italy. The Civil Court of Rome found that Wikimedia is not liable for content that users upload on Wikimedia’s platforms. This decision confirms previous Italian and German rulings, which already exempted Wikimedia from liability for user-generated content.
This last lawsuit was initiated four years ago by Italian politicians Antonio Angelucci and his son, claiming that Wikipedia pages related to the Angeluccis contained false statements supposedly harming the family’s reputation. The allegedly defamatory statements referred to bribery scandals involving the Angeluccis. Although, upon notice of Angelucci’s claim, Wikimedia removed the allegedly defamatory content, the Angeluccis sought €20,000,000 in damages from the Wikimedia Foundation. The plaintiffs argued that Wikimedia should be treated like a content provider, rather than hosting, and should be liable under the stricter standard that apply to the Italian press as an online journal.
The Court of Rome rejected plaintiffs' argument and stated that Wikimedia Foundation serves as a hosting provider in managing the online encyclopedia Wikipedia. Therefore, the liability standards applying to the Italian press cannot be extended to Wikimedia, as “unlike the case of press publication, there is no contractual relationship between the author of the [allegedly infringing] content and the hosting provider; and [casting liability upon] this [conduct], coupled with the enormous amount of data uploaded by users, would imply a form of objective liability that cannot find justification in the present [Italian] legal framework.”
In coming down to this conclusion, the Roman Court noted that, while the Directive does not directly apply to the Wikimedia Foundation as a non-EU-based organization, the basic principles of the Directive apply. According to those principles, Wikipedia enjoys an exemption from liability, as a hosting provider, unless “it does not act to remove, or block access to, the infringing information, if it gets explicit notice of this information by the competent authorities.”
Unlike a content provider, a hosting provider does not have any obligation to monitor the content published by its users to prevent defamation of a third party. The court stated that Wikipedia “offers a service which is based on the freedom of the users to draft the various pages of the encyclopedia; it is such freedom that excludes any [obligation to guarantee the absence of offensive content on its sites] and which finds its balance in the possibility for anybody to modify contents and ask for their removal.”
The court also excluded any form of liability of Wikipedia for carrying out a “dangerous activity.” Theoretically, Article 2050 of the Italian Civil Code would provide a legal basis for this type of liability. As the Court noted, this liability may follow from the “danger of uncontrolled, immediate and pervasive circulation of news that the online platform [managed by Wikimedia] may allow to an indiscriminate number of people.” However, the Court went on to state that Wikimedia was very clear in its disclaimers about its neutral role in the creation and maintenance of content. This disclaimer about the truthfulness of any statements included in Wikipedia would “exclude any involvement of the hosting provider in the defamation.”
This decision follows in the footsteps of an increasingly consistent case law exempting Wikimedia from liability in Europe. In a previous ruling, dealing with a former Berlusconi advisor’s Wikipedia entry, the Court of Rome already declared that Wikimedia is a mere hosting provider that is not liable for user generated content. Likewise, the Higher Regional Court in Stuttgart ruled in October 2013 that Wikimedia is a “service provider” and not a “content provider.” As a service provider, the German Court declared, Wikimedia is not liable for user generated content, nor should proactively check Wikipedia entries for allegedly illegal or inaccurate content.
At this stage, it seems safe to assume that Wikimedia and other similar projects should fall within the E-Commerce Directive's safe harbors for hosting providers and do not need to proactively check their platforms for infringing content. However, although European law rules out a general obligation on access and hosting providers to monitor information trasmitted or stored or to actively seek facts or circumstances indicating illegal activity, monitoring obligations on online intermediaries have been treated quite inconsistently by European courts in the last few years. In looking at recent Italian case law, for example, it may be argued that courts tend to enforce proactive monitoring obligations on user-generated content platforms in case of copyright infringement, while excluding those obligations for allegedly defamatory content. However, the European Court of Human Rights' decision in the Delfi case does enforce proactive monitoring obligations also for defamatory content uploded by users on news platform. If Europe wants to boost its market for user-generated content, legal certainty and consistency in judicial decisions must be better addressed. Innovators will hardly invest in a market where their liability and obligations are not cleraly spelled out.
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