Internet liability are increasingly tested with the growth of social media. And we receive a large number of requests of advice from clients running a fan page, a group or a list on social networks dedicated to either their company trademark/brand or to one of their major products in relation to the liability for the contents published on such fan pages.
What Internet liability issues arise?
The addressed question usually is “Who is the owner of our Fan Page? The Fan Page is not on our website!”, but also different questions arise reviewing this issue such as:
- Are fan page creators hosting providers or content providers for the purposes of the E-Commerce Directive 2000/31/EC and in particular is the hosting providers’ Internet liability exemption prescribed by the E-Commerce Directive applicable to fan page creator;
- Since most of Social Networks are managed by companies based in the US, is the E-Commerce Directive 2000/31/EC (and the relative Internet liability regime) applicable to them?
- Who is responsible for monitoring fan pages? Fan page creators? Social media? None?
- Can Fan Pages be considered equal to a Forum or a Blog? and what is the consequence of the different qualification in terms of applicable liability regime?
- In case of e-commerce activities, who is the entity subject to the obligations set forth by the Consumer Rights Directive?
- In case of defamatory comments, IP breaches or unfair competition conducts through fan pages what fan page creators can do? And how can they protect their interest?
- What type of contractual relationship is in place between fan page creators and social networks?
What is the position of Italian courts?
There is no consolidated position by Italian courts on the matter. The recent decision of the Court of Milan involving Yahoo! and the previous decision of the Court of Turin involving YouTube provide two different views on the matter. The general position is that the company running fan pages and groups is the so called “content provider” and therefore should be liable for the contents published by them.
But the Internet liability regime applicable to social media for contents published by their users on fan pages hosted on their platform and the one applicable to companies running fan pages for the contents published by the members of the fan page/group is more uncertain. The issue is whether such entities can be deemed to be mere “passive” hosting providers and therefore they are not liable for the contents published by their users. Is the managerial activity performed by the social media or the entity running the fan page/group sufficient to qualify them as “active” hosting providers?
In absence of court precendents the matter has to be reviewed on a case by case basis.