“Break Media v. RTI”

• 1. An active hosting provider is defined as a provider of information society services that pursues an activity going beyond a merely technical, automatic and passive service, and actively aids and abets others in the commission of an offence, in which case it is not covered by the general exemption under Art. 16 Legislative Decree No. 70/2003 and has civil liability in accordance with the common rules.

• 2. The factors that can contribute to such a scenario or be indicative of interference are to be determined in practice by the court dealing with the substance of a case and include – by way of example and not necessarily exhaustively – the activities of filtering, selecting, indexing, organising, cataloguing, aggregating, evaluating, using, modifying, extracting or promoting content, carried out through business management of the service, and the adoption of behavioural analysis techniques to increase user loyalty. Such forms of conduct essentially have the effect of complementing and enriching the use of content by unidentified users in a non-passive way.

• 3. As laid down by Art. 16 Legislative Decree No. 70/2003, liability as hosting provider lies with the service provider that has not acted to immediately remove illegal content, or has continued to publish it, when the following conditions coincide:

  • a. the service provider, having been informed by the owner of the infringed right or by another source, is aware under the law of the illegal act committed by the recipient of the service;

  • b. the illegality of the conduct of others is reasonably apparent, in which case the hosting provider is guilty of gross negligence for not having recognised it, in accordance with the degree of diligence that can reasonably be expected from a professional network operator at a particular moment in time; and

  • c. the service provider could have taken useful action, as it had been made aware in a sufficiently specific manner of the illegal content to be removed.

• 4. It is up to the court dealing with the substance of the case to ascertain whether, from the information technology point of view, it is possible to identify videos disseminated in a way that infringe others’ rights solely from the name or title of the broadcast from which they have been extracted, or whether, for this purpose, the URL is essential, in the light of the circumstances prevailing at the time in question.

• 5. On the subject of copyright, the infringement of a rightholder’s exclusive right constitutes damage in itself, without it being incumbent on the injured party to prove any loss of profit other than that the extent thereof, unless the infringer provides evidence, in a particular case, that there is no indemnifiable damage, and the injury claim can be settled in a lump sum by applying the criterion of mutually agreed price mentioned in Art.158(2), third sentence, of Law No. 633 of 22 April 1941, which constitutes the minimum threshold for compensation.

[…]