On January 7,
2015 the Court of Appeal of Milan, business division, issued a very
interesting decision in the case Yahoo! Italia S.r.l. + Yahoo! Inc.
(hereinafter also collectively ‘Yahoo!‘) vs RTI S.p.A (the major Italian private broadcaster) overturning a decision issued on May 2011, 19 by the Tribunal of Milan. Here you can find the decision in Italian only.
The Tribunal in the first instance proceeding, making reference to the distinction elaborated by the Italian case-law between ‘active’ and ‘passive’ hosting provider
, qualified Yahoo! – in the provision of the video-sharing platform
named “Yahoo Video Italia” – as an ‘active’ hosting provider not granted
by the liability exception provided for the ISPs by the well-known
Directive 2000/31/EC (hereinafter also the ‘Directive‘).
In
particular, according to the Tribunal, the service provided by Yahoo!
was not neutral, automatic and passive as requested by the Directive to
the extent that Yahoo!: 1) included within its terms and conditions a
license in its favor to use and communicate to the public the contents
uploaded by the users; 2) included within said terms an indemnity clause
against its users in connection with the contents uploaded on the
platform; 3) included within the platform a removal procedure to signal
the abuses; 4) indexed the contents uploaded by users by means of an
appropriate search engine. The inclusion of such features within the
relevant service were able, according to the Tribunal, to qualify Yahoo!
as an ‘active’ hosting provider jointly liable with its users for the
copyright infringements carried out by means of the service.
The
appellate court in the recent decision overturns the decision issued by
the Tribunal focusing its attention on the following two topics: a) the
distinction between active and passive hosting provider; and b) whether
or not a cease and desist letter sent by the right holder to the ISP is
able to raise a removal duty upon the provider.
- Active and passive hosting provider: is it time to overtake such distinction?
According to the Milan Court of Appeal the answer to the above question shall be affirmative.
Indeed,
the recent CJEU case law on ISPs’ liability defined the scope of such
liability and made clear that in the possible clash between fundamental
rights - protection of IPRs’ vs freedom of speech and freedom to
conduct business – the latter shall prevail.
From the above standpoint according to the appellate Court :“[…]
the notion of active hosting provider is today misleading and shall be
overtaken because it does not fit to the actual features of the hosting
services“.
In addition, following an interpretation in line
with the recent CJEU’s rulings on the subject matter, the Court
clarifies that the features of the service at hand, as briefly recalled
above, are not able to make the provider of such service liable for the
contents hosted by its users.
Indeed, according to the Court, such
features do not make the provider “owner” of said contents able by that
way to alternate the nature of the contents. A different interpretation
would weaken, according to the Court, the relevance of the hosting
exception provided by the Directive that considers the ISPs’ liable only
in case they fail to remove the illicit contents after having receipt a
notice from the right holder or an order issued the competent
administrative or judicial authority.
- Is a cease and desist letter equivalent to a court/administrative body order?
Also in this case the answer is affirmative.
Indeed,
according to the appellate Court a detailed cease and desist letter
(which contains the URL of the pages where the contents are hosted) sent
by the right holder is equivalent to a removal order issued by the
competent authority. Both instruments are able to oblige the ISPs to
remove the alleged illict contents from their services.
This is
made clear, according to the appellate court, by the Directive and by
the constant trend of the CJEU’s case law on the matter.
The
decision briefly analyzed above surely constitutes a turning point in
the Italian debate over the ISPs’ liability. Indeed, for the first time
an authoritative Court, like the Milan’s one, states that the ‘Italian’
distinction between ‘active’ and ‘passive’ hosting providers is
senseless and misleading under a European perspective.
Nonetheless
the decision at hand is able to keep open further issues in light of
the Italian legislative framework on the matter. Indeed, it is worth
noting that the Legislative decree no. 70/2003 which implemented in
Italy the Directive expressly requires a removal order issued by the
‘competent administrative or judicial authority’ in order to compel the
ISPs to remove the alleged illicit content from the services provided.
A
letter, although detailed, of the right holder is not sufficient. A
public body shall, in any case, evaluate the illicit nature of the
content at hand in full compliance with the adversarial principle
between the parties involved.
In the decision at hand the Court of
Appeal makes a direct application of the Directive which on this point
is less protective for ISPs than the national legislation. It is likely
that the margin of uncertainty determined by the decision on this point
will fuel the national debate on the matter waiting for the decision of
the Supreme Court that will follow after the RTI’s already announced
appeal.