Italy – Milan Court of Appeal Overturns Court of First Instance Decision in Yahoo! v. RTI
On 7 January 2015, the Milan Court of Appeal overturned the decision of the Court of Milan dated 9 September 2011, in the case of “Reti Televisive Italiane S.p.A. (RTI) v. Yahoo! Italia S.r.l. (Yahoo!) et al.”. In its original decision, the Court of Milan had found Yahoo! liable for copyright infringement stating that the hosting defence of the E-Commerce Directive could not be applied where the service did not merely perform passive hosting of users’ data, but instead performed “active hosting”. According to the Court of Appeal, on the other hand, the E-Commerce Directive provides no basis to support the distinction made by the Court of Milan between “active” and “passive” hosting. Therefore, pursuant to the Court of Appeal’s decision, there is neither law nor reason for identifying this new type of hosting and for imposing greater responsibility on the same. This is further specified in ECJ Case C-324/09, where the Court of Justice also stated that if the hosting provider delivers additional functions to the end user, this does not lead to a different connotation of the nature of the hosting service. With reference to the hosting provider’s obligation to remove the infringing content upon notice from the rights holder, the Court of Appeal stated that RTI had not indicated in a detailed, precise and specific way the videos that Yahoo! had to remove, so making it impossible for Yahoo! to fulfill this obligation. Indeed, as specified in ECJ Cases C-70/10 and C-360/10, the Court of Appeal pointed out that imposing general and ex-ante monitoring obligations on a hosting provider is forbidden by the E-Commerce Directive.
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