The principles of the judgment
1. The infringement of copyright through the publication of hyperlink.
By judgment No 3512/2019 of the 15th of February 2009, the Court of Rome (Enterprise Specialized Section) ascertained the unlawful nature of the presence on a Facebook profile of hypertexts (links) leading to the viewing of two sequences of images taken from an animated series broadcasted by the television networks of RTI (a company within the Mediaset Group, whose defending attorney was Mr. Alessandro La Rosa, together with Mr. Stefano Previti e Mr. Vincenzo Colarocco) and, specifically, the images relating to the opening sequence.
Mr. la Rosa underlines that the Roman Court acknowledged the EU Court of Justice’s granitic approach to violations of authorial rights committed through the linking technique: “On the illegal nature of the publication of links to third-party portals, in the absence of any prior authorisation from the right-owner, the European Court of Justice has also repeatedly stated that “the act of placing a hyperlink to a work illegally published on the Internet constitutes a ‹‹communication to the public›› within the meaning of Article 3, paragraph 1, Directive 2001/29” (judgment of the 26th of April 2017, Case C-527/15), and that “the act of placing a copyright-protected content on a website other than the one on which the initial communication was made with the authorisation of the copyright-holder must be classified as making such a work available to a new public” (judgment of the 7th of August 2018, Case C-161/17).
The above mentioned judgements are in fact two of the most recent decisions of the EU Court of Justice clarifying the conditions under which the publication of so-called hyperlinks must be considered unlawful: in fact, in the absence of specific authorization by the owner of the rights, it constitutes an act of communication of the work “to a new audience because it is different from the audience originally allowed by the plaintiff. And in fact, the links published through the Facebook page led not to material published by RTI itself, but to material published through a third-party site (YouTube) not authorized by RTI to broadcast the audio-visual materials in question”.
2. The legal nature of Facebook’s liability.
Specifically, the Enterprise Section of the Roman Court has acknowledged the liability of Facebook Inc. “for having concurred, at least with an omissive conduct, to the violations committed by users who have effectively created the Facebook profile under dispute”.
3. The duty of care of the provider.
In the final decision, the Court of Rome has also recalled Recital 48 of Directive 2000/31, which provides the “possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.” Therefore, the knowledge of the illegality of the data stored, however acquired (also via the information provided by the injured party), gives rise to the civil liability and to the liability for damages. The unjustified protracted inertia always results in a responsibility, regardless and prior to the existence of an order of the Authority, as repeatedly affirmed by the Court of Justice. Therefore, despite the role carried in the particular case by Facebook; also the, so called, passive hosting provider upon notice of the illicit act carried out by its users, must act to take down and impede the access to the illicit information uploaded on its website. The provider is in fact expected to carry out its economic activity with the due diligence that is reasonably expected to identify and prevent the illegal activities specifically reported.
4. On the effective knowledge of the illegal content.
In this respect Facebook has contested the eligibility of the notices transmitted by RTI, arguing that they didn’t provide enough detail, since the URLs of the illegal content weren’t reported. The Court considered such claim entirely lacking of legal basis. According to the Court, the identification of URL is only a technical data which doesn’t coincide with the individual harmful content present on the platform, but only indicates the “place” where this content is found and, therefore, isn’t an indispensable prerequisite for its identification. Furthermore, in the specific case the first notice of 26 January 2010 not only provided specific information on the illegal content, but also contained the URL of the webpage of the contested Facebook profile (this was the page through which users could register to the specifically created “group”, read the comments addressed to the two actresses and finally view, via the links, some audiovisual content of the animated series “Kilari”).