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The criminal court of Rome has issued a relevant decision on the liability of hosting providers in Italy. The dispute concerned the placing on the website www.ragazzeinvendita.com of banners connecting to the website www.girlsinchat.com where it was possible to connect via chat or via phone to the girls showed on the website. The proceeding concerned, among others, the contributory liability of the website www.ragazzeinvendita.com for the crime of exploitation of the prostitution.
The court held that the company managing the website www.ragazzeinvendita.com was not liable for the crime since there was no connection with the company managing the website www.girlsinchat.com and in particular because the former did not gain any profit from the activity connected the second website.
This decision is quite interesting since it follows the opinion of the Advocate General of the European Court of Justice relating to the dispute Google v Louis Vitton. According to the interpretation of the Italian criminal court and of the Advocate General, the liability of the hosting providers seems to be linked to the profit that the hosting provider can potentially obtain from the unlawful activity. Should this interpretation be supported by other courts it might make hosting providers that charge a fee to their users liable for any illegal activity performed by the latter even if the hosting providers are not aware of the illegal contents published on their websites.
I believe that such interpretation is in contrast with the provisions of the E-Commerce Directive 2000/31 that prohibits any law obliging hosting providers to monitor the contents published on their websites and only requires them to promptly remove or disable access to the illegal contents as soon as they become aware that such contents are unlawful.
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