The Court of Milan, Enterprise "A", with an order dated April 12th 2018, has accepted in full the injunction requests of Arnoldo Mondadori Editore S.p.A. with request to block access to the well-known web portal "Italiashare" by the Italian Internet Service Providers (ISP) that provide access to the Internet.
Already on 24 July 2017, the same section Company "A" had ordered some of the most well-known access providers to prevent access to its users to the website "Dasolo" and, in response to the requests of the well-known Italian publisher, in accordance with other previous decisions of the same Court ( pronounced as a result of legal actions started by Mediaset Premium S.p.A.), had delineated the perimeter of this order extending the injunction to "all sites with the second level domain name "dasolo", independently of the top level domain adopted".
It was therefore confirmed the legality of an injunction request that included not only the existing domain name but also "all sites with second-level domain name" equal to that existing at the time of the order but " independently of the top level domain adopted " (for more info see here. Italian language).
Obviously, this order did not also included the hypotheses in which the operator of the site in question changed not only the top level domain ("TLD") but also the second-level domain name: as in fact happened in the present case (shortly after the site "Dasolo" assumed the name "Italiashare").
Hence Mondadori's new initiative, which has tried to further extend the number of orders for injunctions already obtained in order to obtain a measure that also includes "alias" websites to be understood no longer as those with the same second-level domain name and different TLD, but as all sites that - regardless of the second-level domain name - are considered to lead to the same violations.
At first, the Court granted the publisher's requests in part, granting, without hearing the other party, an injunction limited to sites with second-level domain names equal to those existing at the time of the order and different only in the TLD.
At the end of the precautionary procedure, instead, the Judge ordered the ISPs, "in their quality of network access providers, to adopt the most appropriate technical measures in order to prevent, the recipients of the respective services from accessing the portal that makes available to the public the same illegal content that is the subject of this procedure and relating to the Magazines, both through the domain name "Italiashare.net that through the sites "alias", reachable through any domain name, within a maximum of ten working days from receipt (via PEC -i.e. certified email- or certified mail) of specific notification of violations reported by the applicant.
On the basis of the following considerations: "having considered the circumstances of the individual case, the Court held that is in accordance with the prohibition of the general order of surveillance, proportionate and at the same time effective, a measure ordering internet service providers to prevent access to the same content as that already found to be illegal - because it relates to the communication to the public, without the authorization of the right holder, of the exclusive rights of the applicant relating to the Periods - is compatible with the prohibition of the general obligation of supervision, proportionate and at the same time effective, regardless of the domain name, which continues to change, by the deliberate and manifest intention of the perpetrator of the offence. A different command to limit the order to a specific domain name would be useless in this case, given that, in a short time, the perpetrator of the offence has repeatedly changed the domain name and it is likely, given the expressed intention, that at the date of issue of the measure the name of the site has changed again. An order concerning illegal content, also affecting alias sites represent therefore, in the case in exam, the only order that "has the effect of preventing or at least making it difficult to carry out unauthorised searches of protected material and seriously discouraging Internet users who use the services of the recipient of this injunction" (see case cit. Telekabel, point 64).
This is a wide-ranging order which aims to guarantee effective protection for the copyright invoked by Mondadori but always in compliance with the principles of effectiveness and proportionality of injunctions: as stated in the reasoning, the Court based such decision on the clear indications given both by the European Court of Justice (i.e. Case C-314/12, Telekabel) and by the EU Commission that, with its Communication of November 29, 2017 on the interpretation of the Enforcement Directive, expressly admitted the full lawfulness of the so-called "dynamic" injunctions: "injunctions that can be issued, for example, in cases where the same website becomes available immediately after the issue of an injunction with a different IP address or URL, which are formulated in such a way as to also include the new IP address or URL without the need for a new judicial procedure to obtain a new injunction".