With the court decision of 24th june 2019, the Rome Commercial Court, fully confirmed the decision of the Judge of the first precautionary phase, according to which it was:
- ordered the company Cloudflare to immediately cease the provision of services to certain so-called "pirate” sites (which allowed unauthorized access to Mediaset audiovisual works called Grande Fratello, Grande Fratello Vip, L’isola dei Famosi e Le Iene) and in particular of data storage services and any other service that allows the operation of these portals and those that, although partly named differently, are attributable to the same operators, as well as access to them, in so far as they contribute to the violation of copyright of the claimant RTI;
- ordered the Cloudflare company to immediately notify to RTI (a Mediaset company) the required and available identifying data in order to single out hosting providers and operators of the so-called “pirate” sites and of those that, although partly named differently, are attributable to the same operators;
- ordered the Cloudflare company to pay to RTI the sum of € 1,000.00 for each day on which the infringement of the order should become apparent.
Within the complaints procedure filed by CloudFlare, the preliminary objections raised by the american company were rejected.
- it has been confirmed that jurisdiction belongs to the Italian court. First of all, it should be noted that, since it is disputed that the rights protected by Articles 78-ter and 79 of Law No 633/1941 have been unlawfully infringed, the jurisdiction of the Italian court exists by virtue of the criterion of the forum commissi delicti established by the Brussels Convention of 27 September 1968, which also applies to countries that did not sign the Convention ( among them also United States of America) as a criterion that was transposed by Law No 218/1995 and, therefore, intended to operate beyond the sphere of personal effectiveness of the Convention;
- it has been confirmed that Directive 2000/31/EC applies in this case. In particular recital 58 of the Directive, transposed into Article 1 (d) of Legislative Decree No 70/2003, provides that this Directive does not apply to the services of providers established in a third country. Furthermore, Article 2 of the Directive (transposed into Article 2 of Legislative Decree 70/2003) states that 'established service provider' means: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;
With the attached order, according to which the decision of the first precautionary phase was fully confirmed, the Judge has:
- Ascertained the applicability of Directive 2000/31/EC to the present case;
- Ascertained RTI's ownership of the right over the registered trademarks "Canale 5" and "Italia 1" and of the exclusive rights of economic use of the audiovisual content of programmes broadcasted over the Internet;
- Ascertained that CF provides a "caching reverse proxy service" through a server that is placed between the server where the site you want to visit is located and the visitor, also performing a caching function of the content;
- Ascertained Cloudflare CDN (content delivery network) service is the tool through which you "cache your content across the global network, bringing it closer to visitors in each geographical area", with the consequent speed up of visualization by the visitor of the portal;
- Ascertained that some activities carried out by CF can be qualified as hosting providers: in particular, Cloudfare offers non-temporary content storage services through the service called "Always online", by which the complainant, copying part of the sites on the server, makes them accessible even in case of technical problems of the server/provider where they are hosted, and through the paid service called "Cludflare Stream" by which it manages "data storage, multimedia encoding, incorporation and reproduction of content, regional distribution and analysis".
Therefore, the applicable law is that concerning the hosting provider liability and copyright protection in the EU: "it is considered thay the provider has a burden to set up an adequate organization in order to face any reports of illegal activities without claiming particular formalities other than that of detailed information of the type of offence detected, a circumstance which, as mentioned, occurred in the present case".
Moreover, according to the Court of Rome (and as already ascertained by the US courts), the deliberate continuation of the provision of services for portals through which illegal activities are carried out despite knowledge of such activities (communicated, for some of the portals in question, also by the AGCOM decisions attached) could constitute an activity of collaboration which prevents to benefit of the exemptions dealing with liability profiles for such activities (according to recital 44 of the EC Directive).