Set 15

The new concept of “active Provider” (English)

The recent opinion of the Court of Milan (Judgement No. 10893/2011 of 9th September 2011) regarding the Internet Providers’responsibilities, has confirmed the new Italian case-law trend according to which Providers (ISP) should be divided into “active” and “passive” ones and that their legal responsibility should be assessed according to the strength of such differentiation. 
Such differentiation between active or passive IPS does not appear in Legislative Decree No. 70/2003 which has received the 2000 e-commerce European Directive; as a matter of fact the foretold decree, regarding hosting, set a responsibility by ISP that doesn’t contemplate a prior control of the material published in the web by its own users. The ratio of this law is based on the different concept that the copyright should have in the web, on the attempt of avoiding an unjustified prior censorship by any perfunctory control and certainly by the inability for an ISP to carry out that kind of control.
The Milan Sentence (conforming to the decisions already embraced in Yahoo/Open Gate and Itaonline/Mediaset cases) has condemned Yahoo to remove from its website Mediaset television videos establishing the new figure of active intermediary, forced to a general duty of control on all the posted material. Milan’s judges have created a figure similar to the content Provider’s one ( subject to the common responsibility for material present on the site).
Yahoo video then should not be associated with old figures of Providers standardized by the community law and therefore it has been condemned due to the fact that it did not identify and remove some videos posted by its own users burdened by certain copyrights (in particular regarding “popular broadcasting” of Mediaset channels)
Another aspect of the sentence that is not convincing is the decision of condemning Yahoo video for not removing Mediaset videos although this last decision hasn’t provided any specific criterion for detecting videos posted illegally. Yahoo should have used its own internal search engine that its own users employ to display videos in which they are interested. It is absolutely clear to anyone who has a basic knowledge on this subject how this is definitely impossible.
Anyway the real innovation is to be looked for in the new qualification of active hosting that is not provided for by any law with regard to the internet. Such new qualification is justified by Milan’s judges on two different reasons:

  • The appearance of commercial links within Yahoo videos spread with the video itself (and then the inability of being qualified as passive ISP)
  • The chance for users to report violation of some posted videos; this would involve, in judges’ opinion, an implicit admission of posthumous power of control by Yahoo videos.

We can not agree with these reasons and according with what set under letter b) because, following the ratio of Milan’s decision, this would come to support that Yahoo would have behaved as passive ISP ( and then would have been guaranteed by community protection) not allowing users to report potential abuses.
Otherwise the court doesn’t set anything about which violation is really imputable to Yahoo, or if this is responsible for violation of copyrights rightfully guaranteed or if the public diffusion of these rights is the pure performance of users’ request.
Such tendency, – began with an opinion of the court of Rome that has condemned Yahoo simply because typing on the search engine the title of the film “About Elly” within the results appeared links showing sites where it was possible to download the film skipping over the official website of the film – threatens to put on risk any activity carried out by providers (active or passive?) working in Italy thus bringing to current affairs the problem of the absence of a law focused on ISP.
At this rate ISP will continue to be condemned while it won’t happen to sites where it is possible to download any kind of material in sheer violation of copyrights.
We’ll wait for next episode.