Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

posted by admin on febbraio 23, 2015

Copyrights, Responsibility of providers

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The Milan Court of Appeal has upheld Yahoo’s! appeal against the judgement for violation of copyright, issued in favour of the Mediaset Group in 2011.

Yahoo’s! Italian division had been convicted because of a number of videos uploaded by users on the “Yahoo! Video” platform which is now no longer operative. The incriminated videos had been taken from RTI (Mediaset Group) television broadcasts such as “Amici”, “Grande Fratello”, Striscia la notizia”, and so on.

In the opinion of the Court of First Instance, although the videos had been circulated by users, Yahoo was to be considered responsible for the violation inasmuch as the activity of the platform could not be restricted to the liability provided for under article 14 of the European Directive on Electronic Commerce (2000/31 / EC) implemented by Italian Legislative Decree 70/2003.

Failure to recognize the neutrality of the intermediary was motivated by Yahoo’s! alleged control over the videos which would have made the platform an “active” hosting provider and thus different from the “passive” providers protected by the Directive. Basically, the Court had identified the platform’s business activity to be of a publishing nature, due on account of the function of automatic indexing and, paradoxically, the ability to remove content reported as illegal.

Accordingly, the Court had also found Yahoo! guilty of the non-removal of all the videos following the injunction served by RTI. These were grounds that Yahoo! had unsuccessfully contested during the proceedings, claiming to have immediately removed the nine videos indicated and to have requested RTI to specify other URLs of videos to be removed, in addition to which they claimed they had never received the complete list.

In a ruling that overturns the judgment of First Instance, The Court of Appeal stressed that Yahoo! had also promptly proceeded to remove a further 218 videos, when the relative URLs were indicated by RTI during the course of the trial.

With regard to the platform’s culpability, the Court of Appeal quoted certain decisions taken by the Court of Justice of the European Union such as those relating to the SABAM-Scarlet case, the -SABAM Netlog case and the Telekebel case and rejected the interpretations of the Court of Milan in 2011. Consequently the conditions do not exist for considering the platform as belonging to a different type of hosting provider not protected by Directive 2000/31/EC. Yahoo! is therefore a simple intermediary and as such under no obligation to independently identify any content in violation of RTI’s rights, nor would it have needed to implement a system of filters to prevent the further violations.

RTI has therefore been ordered to pay Yahoo’s! legal costs incurred in First Instance and Appeal amounting to 244,000 Euros.

The text of the judgment is published HERE.



The Italian Supreme Court’s reasoning for its verdict in the well known case Vividown vs. Google has been announced: namely that the Provider is not liable for the violation of the privacy of individuals in videos uploaded by users.

The Third Criminal Chamber of the Supreme Court published the reasoning for its verdict of acquittal for the three Google executives who were sentenced to six months in prison by a first instance judgment in 2010, following the upload on the Google video platform of a video in which a disabled minor was humiliated by classmates.

According to the Supreme Court, Internet host providers cannot be held criminally liable in cases of violation of privacy due to videos posted on the web.

Press sources have reported certain extracts of the explanation for the sentence: “The offences before us here, relating to Article 167 of the Privacy Code, shall be construed as offences committed under colour of authority, as here we are dealing with conduct only resulting in a breach of the obligations of the owner of the data processed and not of any other person who in any way handles the data being processed, but without related decision-making powers”.

The Supreme Court has specified that the hosting service provider “has no control over the data stored nor does it contribute in any way to the selection of the same, its research or the creation of the file that contains it, such data being entirely attributable to the users of the service who upload them onto the platform placed at their disposal”.

The facts giving rise to the legal proceedings date back to 2006 when the association Vividown (the Italian Association for scientific research and protection of Down’s Syndrome patients, based in Milan) had sued Google for allowing the showing of a video in which a disabled boy was humiliated at school. In 2010, Judge Oscar Magi sentenced three Google executives to six months in prison for invasion of privacy.

According to the court, the California-based company was liable due to the vague nature of the information concerning privacy that Google Video provided for users who uploaded videos. A vagueness that was all the more serious as it relates to an activity carried out for motives of profit.

In December 2012, the Court of Appeal of the Milan court overturned Judge Magi’s decision and fully acquitted the three executives because in their opinion the liability for processing the data was to be attributed to the uploader of the video and not to the content provider. Therefore, this violation does not involve Google, but rather those responsible for the online publication of the video (in this case the student who uploaded the video). For an in depth analysis of the Court’s reasoning, please refer to Prof Giusella Finocchiaro’s comments.

The judgment of the Supreme Court of 18th December 2013 confirmed the verdict of the Court of Appeal. In its explanation released today, the Supreme Court has in fact found that Google Video operated as a “mere Internet host provider, a role that confines itself to providing a platform on which users can freely upload their own videos”, the “content of which is their own exclusive responsibility”. Therefore, the three Google executives accused in the proceedings “are not owners of any data processed”, whereas “the sole owners of the sensitive data processed and contained in the videos uploaded onto the site are the users themselves who uploaded them and they are the only ones who both the administrative and penal sanctions envisaged for the owner of processed data by the Privacy Code can be applied to”.

Two recent court decisions lead us to reflect on the issue of the liability of the Net. The first is the European Court of Human Rights’ decision in the case of Delfi AS vs. Estonia and the second is the recent Grand Instance Court of Paris’s decision in the case of Max Mosley vs. Google Inc.

The two judgements confirm the responsibility, respectively of the portal and the search engine, for contents posted by users.

I believe that these decisions impose on lawyers the duty to question the topicality of European Directive 31/2000 on electronic commerce and on the system of responsibility of the provider. It should also be pointed out that the liability of the provider can only be additional to that of the end beneficiary of the offence.

The decision of the European Court of Human Rights highlights a substantial compatibility of the conviction of the Estonian news portal to settle damages for the defamatory comments published therein by anonymous readers with art. 10 of the Convention, which protects the freedom of expression. Although the sum of the damages was paltry and only amounted to 320€ for non-pecuniary damage, it clearly underlined the principle expressed by the Court, namely that the discredited party must be able to obtain compensation (it was not possible to identify the author in this particular case).

The ruling by the Grand Instance Court of Paris, which has lately raised many doubts, ordered Google Inc. to remove links related to the unauthorized photographs regarding the former president of the FIA ​​(Fédération Internationale de l’Automobile), Max Mosley. Google was granted two months to comply with Judge Marie Mongin’s decision and to pay the former president the symbolic sum of 1€ damages and 5,000€ for legal fees.

The misalignment between regulation and law is clearly obvious to those in the know.

If we only consider the normative data, there can be no doubt: the responsibility of the provider is governed by the EU Directive and by Italian art. 17 of Legislative Decree no. 70/2003 which excludes any obligation for monitoring and only considers any responsibility subsequent to committing the offence under certain conditions. From a historical point of view, this rule was created to meet the needs of the economy, an approach that characterises Directive 31/2000 and the EU’s approach to electronic commerce itself: the need was to encourage the development of the Internet. Moreover, a liability rule that exempts from liability is most particular. This economic need is also accompanied by the need to meet the additional requirements of freedom and the neutrality of the Net

However, jurisprudence today seems ever more frequently to seek interpretative solutions that enable it to overcome the provision of the law.

We can consider emblematic the recent Italian case of Google vs. Vividown (Court of Milan, April 12, 2010, subsequently reformed by the Milan Court of Appeal on December 21, 2012), in which the grounds for Google’s responsibility was to be found in the legislation on the protection of personal data.

It is therefore necessary to reflect on the historical and economic reasons behind this change of scenario. In something less than fifteen years from 2000 to today, the Internet has radically changed. The need today is no longer that of “network expansion”, but of rethinking the legislative framework as well as the allocation of responsibility in this mature phase of the Internet.

At this point, the role of search engines must also be considered. Are they really neutral? Or do they create a sort of parallel reality for the average Internet user? There are already a number of decisions that confirm the responsibility of search engines: in the UK the judgement of the Royal Courts of Justice on 14 February 2013, in Australia in the case of Trkulja vs. Google on 12 November 2012 and finally in France, the judgement of the Grand Instance Court of Paris, which convicted Google of defamation with its judgement on 8 September 2010.

These decisions oblige lawyers to reflect on the actuality of Legislative Decree no. 70/2003 and the need for reforms.

Therefore it is high time we began pondering over and having second thoughts about a rule which came into being in 2000, but which was conceived even earlier, when the main aim was to get the Internet to expand.

What is the function of civil liability and its objective in this new context?

To answer this question, we must first answer two others. And it comes down to questions of method, in a context in which with increasing frequency laws are written without there being any plan, without any wondering why and abandoning what should be a lawyer’s true role, namely firstly to ask and also to ask oneself questions and only afterwards to write the rules.

And the questions to ask oneself – and there are at least two – are these.

The first, what are the values one is called on to protect through the law in this case? The second: who decides? The judge or the legislator?

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