The Court of Rome has issued a significant decision on the liability of internet service providers (ISPs) in a case involving Google and Italian television company RTI. Although the ruling appears to favour ISPs, its effects may soon be considerably limited by regulatory developments.
The case concerned the use of images from football coverage broadcast by RTI (through its affiliate Mediaset). RTI asked the court to prohibit Google from publishing such images on its blogging platform, Blogger. This would have required Google to monitor all videos published on Blogger in future in order to prevent a potential breach. However, the court held that where illegal material was promptly removed following a detailed notification, Google could not be deemed liable for content published by its users. It therefore rejected the request for an order requiring Google to prevent the future publication of illegal content by users.
The court referred to the recent decision of the Court of Justice of the European Union in SABAM v Scarlet. It held that even if it were technically possible for Google to filter the content that is published on its platform, such an obligation would conflict with the non-monitoring principles for ISPs in the EU E-commerce Directive (2000/31/EC). Therefore, Google must remove infringing material when given due notice, but is not required to prevent its publication.
A key question remains: what kind of notice is sufficient to require ISPs to remove infringing material? The existing version of Legislative Decree 70/2003, which implements the directive, stipulates that the obligation is triggered by a "judicial order". However, under the terms of a bill that is being reviewed in Parliament, notice from an "interested party" would be sufficient. At present, the bill does not clarify whether the interested party must be the rights holder; nor is it clear what information the notice must provide or whether the interested party may be fined for an unfounded notice.
Without clarification on these points, the risk is that competitors might abuse the system, sending notices with the sole purpose of disrupting another operator's business. Moreover, it is unclear whether all videos or other content being challenged must be specifically listed - for example, by providing a link to the infringing content in the notice. A new rule on this point might affect the position taken in the Yahoo! Italia case, in which the court held that a rights holder is obliged to identify the infringing material (for further details please see "Relief for ISPs as Court of Appeal overturns Yahoo! Italia decision").
Few would doubt that 2012 will be an interesting year for ISPs in Italy. The Court of Rome's decision, the bill before Parliament and a new notice and take-down procedure - which is due to be implemented shortly - will keep ISPs under the regulatory spotlight.
For further information on this topic please contact Giulio Coraggio at DLA Piper Italy by telephone (+39 02 80 61 81), fax (+39 02 80 61 82 01) or email ([email protected]).