By sentence no. 693/2019 of 10 January 2019, the Court of Rome ordered Vimeo to pay more than 8 million to RTI, a company of the Mediaset Group, for having shared and broadcast on its portal audiovisual content reproducing television programmes of the Italian broadcaster.
An important aspect concerns the indications provided by the Judges of Rome in relation to the responsibility of the Internet Service Provider.
In the past, we had already dealt with the duty of the Internet service provider to remove illegal content (see our article of 14 September 2017).
The measure of the Court of Rome traces the most relevant jurisprudential guidelines on the subject and focuses on the distinction between active and passive hosting providers.
Article 14 of Directive 31/2000/EC, and Legislative Decree 70/2003, defines the “hosting” service as “storage of information provided by a recipient of the service”.
Hosting is defined as “passive” when it is a purely technical and automatic activity On the other hand, it is active when it acts on the contents uploaded by users
Active hosting is not subject to the exemptions of liability provided by art. 14 of Directive 31/2000/EC and art. 16 of the implementing Decree 70/2003 expected for passive hosting.
Although there is no obligation to monitor and check in advance the content posted by users, those who “actively host” must remove such content or disable access, whenever they are aware of the illegal content of transmissions.
The judges have defined the defendant “Vimeo” as an “active hosting” platform as it offers a service “similar to a video on demand service”.
Vimeo provides users with an internal search engine that allows you to easily find the videos of your interest by inserting the title of the video you are looking for, refining it by using the time data or the popularity level of the video and associating it with advertising links.
The provider in matter, according to the sentence, “carries out a complicated and sophisticated organization of exploitation of the contents introduced in net” that are catalogued, indexed and put in correlation between them.
The system used by Vimeo loses its neutral character and is incompatible with the figure of passive hosting, as the technological tools used are suitable to give it the knowledge and control of the data entered by users.
Therefore, in addition to the generous compensation against RTI, the Court of Rome has ordered Vimeo not only to remove from its platform all content without authorization, but also to prevent future uploads by users of such videos.
As a result of its role, it becomes responsible for the content posted by users.