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The Court of Rome on a case between Google and the Italian TV company, RTI, has issued an interesting decision on liability of Internet Service Providers (ISPs) whose beneficial effects might be considerably affected by the upcoming regulatory developments.
RTI had requested the court of Rome to prevent Google from publishing on its blogging platform, Blogger, the images of football matches broadcasted by RTI (through the affiliate company Mediaset) which would have obliged Google to monitor any video published in the future on Blogger in order to prevent a potential breach. However, the Court of Rome held that in case of prompt removal of illegal material following a detailed notification Google could not be deemed liable for contents published by its users and rejected the request to order Google to prevent the future publication of illegal contents by users.
The Court made reference to the recent decision of the European Court of Justice on the dispute Sabam vs. Scarlet and held that even if it was technically possible for Google to filter the contents published on its platform such obligation would have been in contrast with the non-monitoring principles for ISPs set forth by the E-Commerce Directive as implemented in Italy.Therefore Google can be obliged to remove following a notice but does not have to prevent the publication of illegal material.
But, what kind of notice is sufficient in order to oblige ISPs to remove the material? The current version of the Legislative Decree 70/2003 implementing in Italy the E-Commerce Directive requires a “judicial order” to trigger such obligation, but a bill that is currently under the review of the Italian Parliament would trigger this obligation as a consequence of a mere notice from an “interested party” without clarifying whether this has to be the right holder, what kind of information needs to be provided in the notice and whether the “interested party” can face fines in case of ungrounded notices.
Indeed, the risk might be of potential abuses through notices that are sent with the sole purpose of disrupting the business of a competitor. Also, it is not clear whether for instance all the challenged videos, contents or materials shall be listed (e.g. providing the relative link) in the notice and this might affect the position taken on the Yahoo! Case where the court held that the right holder is obliged to identify the infringing material.
2012 will be an interesting year for ISPs in Italy as these recent court decision coupled with the above mentioned bill and new notice and take-down procedure that is expected to be implemented shortly will keep a lot of attention from ISPs on Italy.
Need more information on the above? Feel free to contact me, Giulio Coraggio.
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