In April 2009 RTI SpA, part of the Mediaset group, filed a complaint before the Court of Milan against Italia On Line Srl (IOL). RTI alleged infringement of its IP rights and trademarks relating to famous television shows broadcast by RTI in Italy.

IOL, an Italian company, is the owner of, a website where users can upload videos and post comments. RTI claimed that the website gave access to more than 1,000 videos that reproduced RTI's programmes without the necessary copyright authorisation.

On June 16 2011 the court ruled against IOL for copyright infringement, ordering the company to remove all videos reproducing RTI's programmes from its website.

The court ruled that the liability exemption for hosting providers set forth in Legislative Decree 70/2003 - which implements the EU E-commerce Directive (2000/31/EC) - did not apply to IOL. It held that the directive applies only if a hosting provider merely provides an online space where users can upload their content. In contrast, it does not apply if the hosting provider is involved in managing, indexing and categorising content uploaded by users - that is, where the hosting provider plays an active role.

The court clarified that IOL was an active hosting provider because it:

  • did not merely host videos posted by users, but also provided an internal search function that allowed users to search for videos by keyword;
  • provided users with related search results, which were intended to improve their experience of the website by suggesting videos in similar categories;
  • required users to accept terms and conditions which allowed IOL to seek to gain revenue by delivering targeted advertising;
  • implemented a notice and takedown system that allowed users to notify potentially infringing content (although under the terms of the directive, hosting providers are not required to remove content unless a public authority so requests); and
  • uploaded some of the contentious videos.

In addition, the court noted that IOL had ignored RTI's repeated requests to remove the videos in question.

Although the court recognised that the existing rules on internet service provider (ISP) liability are out of date, it confirmed that under Italian law, neither active nor passive hosting providers are obliged to monitor users' videos before they are uploaded to a public online space, as this would be impossible even with the help of automatic filtering systems. However, ISPs must adopt measures to prevent instances of copyright infringement once they are notified by rights holders; moreover, they must notify the relevant authorities of the unlawful content on their website.

The decision is likely to prompt considerable debate. Although it follows the concepts outlined in previous Italian case law involving other ISPs, most notably YouTube, it appears to go further, excluding the applicability of the directive's principles to any operator that offers search functions, advertising or management services in respect of content added by users. Since this would apply to almost all ISPs that host user-generated contents, the decision may have significant consequences.

For further information on this topic please contact Giulio Coraggio or Matia Campo at DLA Piper Italy by telephone (+39 02 80 61 81), fax (+39 02 80 61 82 01) or email ([email protected] or [email protected]).