On 21.12.2012 the Milan Court of Appeal declared the full acquittal of the Google executives who had been convicted of violation of the data protection law in 2010 by the Milan Court, whose decision caused a worldwide sensation.
These are the facts: the video of a disabled schoolboy being bullied by his schoolmates which they had then uploaded to You Tube.
Google was not convicted due to the fact that under Italian Law providers has no obligation to carry out a prior control. However, as there is the involvement of personal criminal responsibility in this case the Google executives were convicted of violation of the privacy law. The main points debated were the applicability of Italian law per se in the case and Google’s obligation to verify that those who had uploaded the video had respected the data protection law.
We look forward to reading the reasoning behind this judgement, which for numerous different reasons will certainly have wide-ranging implications.
The Court of Milan has once again upheld the claims of the Mediaset Group against a Content Service Provider that hosts user-generated content. This time it is Yahoo! Italy which has been condemned for distributing a number of TV videos protected by copyright without authorization.
After the decisions of the Court of Rome against Google/YouTube and the Court of Milan against Libero.it, both in favour of Mediaset, the direct responsibility of the providers for the unauthorized broadcasting of content protected by copyright has once again been established in Italy.
The Mediaset Group sued Yahoo! on 3 November 2009, following a control sample that had detected the presence of 218 videos taken from its TV shows, for a total of 21 hours broadcasting.
The Court ruled that the unauthorized broadcasting of videos by Yahoo! Italy constitutes a violation of copyright, therefore it has banned all future transmission of these videos on the portal, deciding on a fine of €250 for each video not removed and for every additional day of unlawful presence.
The amount of damages due to Mediaset will be fixed at a second hearing scheduled for October 18, 2011.
A number of commentators have stressed the contrast between the decision of the Court of Milan and the Court of Madrid which, a year ago, rejected similar requests from Telecinco (also part of the Mediaset group) against Google / YouTube.
Once again a content provider operating in Italy has been held liable for copyright infringement regarding user generated contents.
The Court of Milan has recently condemned Libero.it, a provider owned by Italia Online Ltd., for violation of intellectual property rights on audiovisual works. The claim involves about a thousand videoclips from highly successful TV programmes such as Grande Fratello (Big Brother) and others. The programmes are owned by RTI Italy (Mediaset), a well-known broadcasting company.
The decision is mainly based on the fact that Libero.it had previously received a request from RTI Italy (Mediaset) to remove the files infringing copyright and failed to comply with that request.
Although the Court recognized the impossibility of carrying out precautionary checks on the files uploaded by users, the decision held Libero.it liable for not having verified the contents notified by RTI.
Libero.it’s defence was based on the fact that the RTI notification was a “general warning” containing only the titles of the programmes to be removed, and therefore it would have been “impossible to identify the specific videoclips in consideration of the huge number of videos posted daily by users.”
These grounds were not upheld by the Judge who held that, given the popularity of those programmes, “a merely superficial and cursory check” would have been sufficient to demonstrate RTI’s rights.
Consequently the Court ordered Libero.it to remove all videoclips and fixed a penalty of €250 per video for each additional day’s presence. The decision also provides that the amount due for damages should be determined by a second judgement following further investigation. Should RTI’s compensation request be upheld, the content provider would have to pay €100 million in compensation.
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.