The recent decision of the Court of Milan, offers much food for thought.
In brief, the Court turned down the appeal and ordered Google to suspend the association between the first name and second name of a businessman and words such as “truffa” (fraud) and “truffatore” (swindler) which would automatically appear when typing the businessman’s first name and second name followed by the letter “t”on the search engine.
Google’s line of defence was that the association occurred automatically in that it was made by the software which automatically completes search queries on the basis of previous searches made by users. Nevertheless, Google did in fact comply with the order.
The most relevant aspect of the decision for lawyers is that the Court defines the search engine as a database. Thus, Legislative Decree 70/2003 regarding provider responsibility and exemptions from responsibility provided for by that law, cannot be enforced.
Therefore the question of the provider’s awareness of infringement is of no importance.
This question is, however central to other Italian Court decisions. The latest being the order of the Court of Rome of the 23rd of March with regard to the Yahoo! case.
Today, in order to analyze the highly complex issue of provider responsibility it is essential to identify two separate analytical profiles, the first technical-juridical and the second regarding legislative policy.
1) The technical-juridical profile: application of current laws
The technical-juridical aspect can be summed up in brief as follows: Is it correct to find, as many recent Italian rulings do, in favour of an exclusion for the provider from exemption from responsibility, provided for by article 17 of Legislative Decree 70/2003? And therefore to affirm that the provider is responsible?
Article 17 provides that the provider has no obligation of surveillance.
Article 16 provides that hosting providers are not responsible for stored information, if they are unaware of their illegal nature.
Providers are responsible, however, if they do not remove or fail to disable access to illegal information having previously received such a request from the relevant authority.
The crucial issue is: Who is it that defines the illegal nature of the information?
It should clearly not be the subject in whose interest it is to remove the information, nor the provider who may as a precautionary measure always choose to remove the information (even under the current law). It should therefore be a third party, namely a judge.
The most delicate aspects of the issue are of course proof of provider awareness and the definition of the illegal nature of the information.
2)The legislative policy profile: modifications to the norms
If it is decided that whoever even indirectly profits from publication of information should be held responsible, then the current laws should be modified and a juridical form should be adopted which is closer to that of the American Digital Millennium Copyright Act, in which effective awareness and the notice and take down system are considered.
The presiding judge in the Yahoo!’ case seems to have followed this example.
Italian jurisprudence seems to be trying to build up a scenario in which providers are responsible for content, although there are norms which rule differently. However, it is clear that legislative intervention is required.