Internet Service Providers’ (“ISPs”) level of liability is closely related to the growth of the Internet and the possibility for users to upload content on the web that might be protected by IP rights. The question is whether and to what extent ISPs can be held liable for illegal content uploaded to websites or online platforms by users.
In Italy, ISPs liability is regulated by Legislative Decree No. 70/2003 on Electronic Commerce (the “Decree”), which implemented Directive No. 2000/31/EC (the “Directive”).
Both Directive and Decree exclude liability of “mere conduit” service providers (which simply provide access and/or transmission in a communication network) for the information transmitted, without prejudice to the possibility for a court or administrative authority of requiring them to terminate or prevent an infringement.
In particular, ISPs don’t have a general obligation to monitor the information they transmit or store nor to seek facts or circumstances indicating illegal activities (Art. 17 of Decree). They shall instead promptly inform the competent authorities of alleged illegal activities carried out by recipients of their services and communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
On July 2016, the Court of Milan set out important principles relating to ISPs liability in a very interesting case involving one of the main Italian TV broadcasters (Mediaset Premium, “MP”) and a number of major ISPs and their association – some of which have been assisted by our firm.
For three years, the website “Calcion” broadcasted through streaming technology on the web football games which could exclusively be transmitted by MP on pay-tv. After every blocking order obtained by MP before AGCOM (Italian Authority for Communications), Calcion circumvented the order by operating the “Calcion” website under a new top-level domain (calcion.me, calcion.eu, calcion.tv, calcion.md, calcion.in, calcion.co, calcion.pw, calcion.xyz, calcion.be and, lastly, calcion.at).
MP eventually filed an application before the Court of Milan involving a number of major ISPs in order to obtain blocking injunction against calcion.at, as well as any top-level domain and IP address that in the future would be associated with Calcion. ISPs were of course not in favor of Calcion activity and complied with each blocking order; however they objected to MP’s request to block access to all future associated websites and IP addresses as this would impose on them a general monitoring obligation, which is contrary to the law.
The Court of Milan upheld ISPs position, issuing a blocking order for calcion.at, but rejecting the remaining MP’s claim on the following grounds:
- a general monitoring obligation cannot be imposed on ISPs;
- even if MP had undertaken to indicate any future website or IP address associated with Calcion, so that ISP will not need to monitor the traffic, MP’s request is unacceptable for procedural reasons. In particular, the order sought, if granted, would be devoid of self-sufficiency since it would allow a private party to verify the content of certain websites in order to evaluate whether they are infringing or not a party’s right, a task reserved to courts and public authorities;
- in addition, since an IP address may host more than one website, it is possible that the IP addresses indicated by MP host also lawful websites. An adequate balance of interests between IP protection and other fundamental rights such as freedom of enterprise, the right to information and freedom of expression has to be carried out by the court or the public authorities.
This is an important decision that will likely influence the relationship between rights holders and ISPs.