“Internet Hosting Provider Liability for Copyright Infringement – RTI v. Yahoo Italia”

• 1. The active hosting provider is the information society service provider which carries out an activity different from an exclusively technical, automatic and passive service. Instead it puts in place an active conduct, jointly concurring to the third-party’s unlawful act, therefore being outside the general liability safe harbour regime of Art. 16 Legislative Decree No. 70 of 2003. Its tort liability follows the generally applicable rules.

• 2. In the context of information society services, the liability of the hosting provider foreseen by Art. 16 Legislative Decree No. 70 of 9 April 2003, exists for the service provider which has not initiated the immediate removal of the illegal contents, as well as if it has continued to publish them, when the following conditions jointly occur:

  • a. it has legal knowledge of the offence/tort committed by the service recipient, having received notice by the injured rightholder; or [having such knowledge] otherwise

  • b. the unlawfulness of the third-party’s conduct is reasonably ascertainable, so that it (the provider) is in gross negligence for not having positively ascertained, according to the degree of diligence reasonably due by a professional internet operator at a given time in the past; [and]

  • c. it has the possibility to take meaningful action, thanks to a sufficiently specific notice concerning the uploaded illegal contents to be removed.

• 3. [The communication from the injured rightholder to the hosting provider does not require a formal cease-and-desist letter requesting the removal of the illegal contents insofar as it sufficiently identifies them.] It lies with the trial judge to make the factual assessment of whether, from a technical-IT perspective, the identification of the videos shared in breach of third-party rights is possible solely by indicating the name or title of the programmes from which they are taken, or whether, the communication of the “URL” address (according to the existing circumstances at the time of the events) is required.