Liability of internet services providers recognized

On February 11 2010 the Court of Rome upheld an order issued on December 15 2009, thereby recognizing the liability of hosting services providers - in this case, the video-sharing website YouTube - for the infringement of IP rights on the Internet.
The decisions were based on the provisions of the E-commerce Directive (2000/31), which clearly state that internet services providers (ISPs) will be held liable for illegal activities carried out by users of their services only if they were aware of the illicit nature of these activities. The directive also provides that the exemptions from liability will not apply to ISPs that:
  • deliberately collaborate with recipients of their services in order to undertake illegal activities;
  • provide services that are not limited to those regulated by the directive; and
  • have not fulfilled their duty of diligence.
In the present case, the court held that, in order to establish the liability of ISPs, the following issues are decisive:
  • Whether the illegal activities continued despite several warnings - the court thus rejected the thesis according to which an ISP would not be held responsible because its only function is to store information at the request of a recipient of its service.
  • Whether the ISP was able to monitor the activities of its users and remove publications of a pornographic nature - if this was the case, the ISP was thus able to prevent the publication of infringing material.
The court pointed out that the liability of ISPs should be assessed on a case-by-case basis. However, liability will arise where the ISP was aware of the presence of suspicious material, but refrained from removing it or from taking any other action. The court clarified that, in this specific case, the illicit activity was not compatible with the mere storing of information.
In an earlier case involving illegal downloads of copyrighted works through a peer-to-peer website, the Supreme Court (Criminal Division) had held that the website's owner was liable because it had supplied, “through a search engine or through indexed lists”, the information (provided by some users) that was essential for other users to download the works (Case 49437, December 23 2009).
The Italian case law thus shows that it is possible to protect:
  • the safety and freedom of choice of internet users;
  • the activities of ISPs; and
  • industrial and IP rights.
This is in line with the objectives of the directive, which aims to balance the interests of the various parties involved.
Cesare Galli, IP Law Galli, Milan

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