Copyright infringement and the ISP’s duty to remove illicit contents

Has the Internet Service Provider (ISP) the duty to remove the illicit contents uploaded on its platforms? When?

The Directive 2000/31/EC (Directive on e-commerce; accepted by the Decree Law no. 70 of 2003) stated that in case they perform the so-called “mere conduit” services (art. 12), the ISPs have no general obligation to monitor (art. 15) and nor liability. Art. 12 specifically states that:

  1. […] Where an information society service consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the service provider is not liable for the information transmitted, on condition that the provider: a) does not initiate the transmission; b) does not select the receiver of the transmission; c) does not select or modify the information contained in the transmission.

[…] 3.  This Article shall not affect the possibility, […], for a court or administrative authority of requiring the service provider to prevent or terminate an infringement.

In conformity with the law, the Court of Milan, dealing with a case of a website broadcasting some series A soccer matches taken from the online live of Mediaset Premium – the exclusive licensee of the broadcasting rights – with the ordinance of May 8, 2017 stated that:

“with regard to information societies, whether they carry out activities of mere data conduit or of catching information, it does not appear a general obligation to monitor the information that they transmit or catch nor a general obligation to actively seek facts or circumstances indicating the presence of illegal activities. […] They gave explanation at a civil level for the content of the services, as requested by a court or administrative authority, if they do not promptly prevent the access to the content of such services”

In this case, the illicit character of the broadcasting activity had already been ascertained by the provision of the AGCOM (Authority for Communications Guarantees) and of the court but the activity did not stop. The court ordered the block of the website and the applicant obtained, by a pre-court appeal,  that the service providers should monitor the reason why the website was no more visible also imposing a penalty for each future visualization.

Then, the Court of Milan confirmed the civil responsibility in case after a removal request of the detrimental content from the administrative authority or the court, the ISP omit such a removal. At the same time, the simple warning by the owner of the right of the presence of a detrimental content does not imply any violation of the obligation to monitor. “In presence of  the specific indication of the violations by the applicant, it is not possible to find any violation of the prohibition to general obligation to monitor. The Internet Service Providers have no obligation to monitor or to seek”.

On the contrary, a judgment of the Court of Appeal of Rome (judgment no. 2883/2017) previously stated that a precise and detailed cease-and-desist by the owner of the rights, even if without the specific URLs, was sufficient to have the provider forced to remove the contents (the Court of Turin shared a similar idea with the judgment no. 1928/2017: the obligation to remove the contents harming someone else’s copyright arises only when the cease and desist specifies the URLs related to the content in violation to somebody’s right).

Finally, even if the law sometimes expressed itself differently on the matter, the literal content of the law on the directive on e-commerce and the more recent case law should drive to assume that the ISP has to cancel illicit contents when the administrative authority or the court asks for it.

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