- Identification of the activity of Break Media as "active hosting" and not just "passive hosting". According to the Court, Break Media is not a simple host of media content but a sophisticated content-provider. Indeed, the activity of Break Media is not limited to the activation of technical procedures for enabling the content to be loaded to the platform ("passive hosting"), but requires of a complex and sophisticated organization of advertising exploitation of the content loaded to the platform which is selected, addressed, related and associated to other contents in order to deliver to the user an audiovisual product, which has a better quality, complexity and a precise and specific autonomy ("active hosting"). As a result, the defenses of the E-Commerce Directive are not applicable, and general rules on liability apply.
- Effective knowledge of Break Media of transmission of illegal files. Although the communication sent by RTI demanding Break Media the removal of the infringing content from the platform did not identify the specific URL (precise and specific location of the content to be removed), the effective knowledge of the defendant of the infringing nature of the content was enough (which in this case was evident, also by the fact that the content clearly showed the broadcaster’s trademark).
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