With its judgment of 10th January 2019, n. 693, the Court of Rome has given its ruling on the dispute concerning the liability of the Internet service provider Vimeo for copyright infringement.
The plaintiff was Rete Televisive Italiane S.p.A. (RTI), an Italian company operating in the field of TV production and broadcasting which is the owner of the copyrights of a large number of the contents of television programmes broadcast on its channels.
For allowing the circulation of film clips taken from its television broadcasts, RTI had contested infringement of its copyright by Vimeo LLC, an American Professional Video Platform which provides a video hosting service on its platform allowing users to publish and share videos on line.
The Court of Rome’s decision in the lawsuit was mainly based on attribuiting liability to the Internet service provider, in particular to the hosting provider. In fact, Vimeo offers a hosting service as it allows the storing and sharing of contents uploaded by users on its servers.
The legal provisions with regard to the liability of Internet Service Providers (ISPs) are contained in Legislative Decree 70/2003 which implements EEC directive 31/2000.
In accordance with the provisions of Art. 16, par. 1, Legislative Decree 70/2003, the hosting provider is not liable for the information stored at the request of a user of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is unaware of facts or circumstances from which the illegal activity or information is apparent; (b) as soon as it becomes aware of such facts on communication from the appropriate authorities, the provider acts promptly to remove or disable access to the information.
In its explanatory statement regarding its judgment, the Court went back over the legal interpretations of both Italian and EU jurisprudence on the liability of the ISP and concluded by affirming that the service offered by Vimeo must be classified as an “active” hosting service and as such cannot benefit from the exemption of responsability provided for under art. 16, par. 1, Legislative Decree 70/2003. In fact, the Court observed that “Vimeo not only provided the technical means to allow access to the communication platform where the contents uploaded by users are transmitted or temporarily stored, with the single aim of making transmission more efficient, but also carried out a complex and sophisticated activity of data organisation on the use of the shared online contents which are selected, directed, linked and related to others, essentially arriving at providing an audiovisual product of high quality and complexity which has its own specific, clear autonomy”.
Nevertheless, in the opinion of the Court of Rome such a conclusion is not of decisive importance for its judgment on the assumption that according to settled case law, although the provider has been classified as an “active” hosting provider, the hosting provider shall in any case only be held liable for copyright infringement if it is demonstrated that the provider was aware of or might have been aware of the illegal use of the audiovisual contents shared on its platform by users in violation of RTI’s rights. Indeed, under the provisions of art. 17 of Legislative Decree 70/2003, providers have no general obligation to monitor the content which they transmit or store, nor a general obligation to actively look for facts or circumstances indicating illegal activity on the part of users of the service.
On the basis of this reasoning, the Court of Rome established Vimeo’s liability inasmuch as they failed to act promptly to remove the contents which infringed RTI’s rights, even though they had been made aware of the illegal activity in specific notification communicated by RTI.