A few days ago, an important Italian judicial precedent on hosting providers’ liability has been overturned by the Milan Court of Appeal. The appellate court rejected any general monitoring obligations to be imposed on videosharing hosting providers for copyright infringement.
In Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al., decided on September 9, 2011, the Court of Milan found Yahoo! liable for copyright infringement. Infringement supposedly occurred with the publication of fragments of television programs through the now-terminated Yahoo! Video service. The Court stated that the hosting safe harbor of the E-Commerce Directive could not be applied where the service is not a mere passive hosting of users' data, but is instead an "active hosting".
The Court of Appeal has now reversed that earlier decision. The appellate decision clarified that RTI had the obligation to indicate in a "detailed, precise and specific manner" the videos that Yahoo! had to remove. Additionally, in view of the Court of Appeal, the court of first instance did not have the power to "impose to a hosting provider general orders or, even worse, general monitoring obligations, which are forbidden by Directive 2000/31/EC." Intermediary liability may arise only if the hosting provider does not act promptly upon a "detailed, precise and specific" notice. Actually, RTI never sent this notice to Yahoo!, therefore the appellate court found in favor of Yahoo! and rejected RTI's claims.
RTI, a Mediaset company, will most likely take this case before the Italian Supreme Court. Meanwhile, several other cases brought by Mediaset against video-sharing platforms, including Google, are still pending. For example, another recent decision of the Court of Turin took an opposite view from that of the Milan Court of Appeal. The Court of Turin stated that any hosting providers, whether active or passive, have an obligation to prevent the repetition of further infringements once they have actual knowledge of the infringement, according to the principle cuius commoda, eius et incommoda ("a party enjoying the benefits [of an activity] should bear also the inconveniences"). This civil law principle refers to a form of extra-contractual (or tort) liability for which whoever benefits from a certain activity should be liable for any damages that that activity may cause. Similar principles have been applied also by the the Brazilian Supreme Court in a recent case dealing with infringement occurring on YouTube, as we reported here. Standing this confuse judicial framework, a decision of the Italian Supreme Court on this matter is certainly welcome.
The text of the decision of the Milan Court of Appeal is available here (Italian only). We will update you as soon as new developments will occur.
Saverio Ligi in an attorney with Baker & Mckenzie in Rome.