On January 10, 2019, the Commercial Chamber of the Court of Rome issued a decision on the applicability of the exemptions of liability provided for in Directive 2000/31 EC to internet service providers. With this decision, the video sharing platform Vimeo – which offers services similar to those of YouTube – was ordered to pay Euro 8.5 million in damages to Mediaset – the largest commercial broadcaster in Italy.
The decision brings to an end proceedings which lasted more than six years commenced by the well-known Italian television broadcaster after realizing that numerous excerpts of its own television programmes were being published on the defendant’s platform. According to Mediaset, Vimeo – even though not itself responsible for the act of uploading – should nevertheless be held liable for such publications, since it had not removed the disputed content upon receipt of the plaintiff’s requests which were sent before and after the commencement of the proceedings.
Vimeo requested that the case be dismissed and based its defence on the argument that it was to be classified as a mere intermediary which does not control the content published by users and is therefore covered by the exemptions from liability under Directive 2000/31 EC. Regarding the requests received, before and after the start of the proceedings, Vimeo considered removing those individual videos accessible through specific links (URLs) identified by the righ tholders – and such removals were made by Vimeo – was sufficient action on its part. On the other hand Vimeo alleged that it was under no obligation to remove videos which – though extracted from the same programmes as those set in the requests – were published on different links (URLs).
With the decision of 10 January, the Court of Rome upheld the claims of the plaintiff and held Vimeo liable for negligence having failed to comply with what the Court regarded as its removal obligations.
The Judge, in reaching its decision, reiterated a consolidated approach of both the Court of First Instance and the Court of Appeal of Rome, dismissing Vimeo’s argument on the need to specify links (URLs). The Court found that there was ‘no legal basis of the sector, nor Community case-law’ which obliges the right holder to communicate link (URL) data to the provider, whereas ‘a precise indication of the programme’ titles’ must be regarded as sufficient to obtain the removal of all the videos extracted from the programmes themselves. In fact, the Court of Rome confirmed that the ‘URL is technical data that does not coincide with the individual detrimental content on the digital platform, but only represents the ‘address’ where the content is available’.
The Court of Rome also pointed out that providers are always required to comply with the ‘duty of care’ obligation so that it is reasonable to expect – in order to detect and prevent certain types of illegal activities – that the level of care required is determined by the state of the art.
In this case, in the opinion of the Court Appointed Expert, there are technologies currently in existence (so-called ‘video fingerprinting’) that allow the provider to ‘identify, within the material present on its digital platform, material corresponding to specific illegal content, even without the prior knowledge of the URL’.
According to the Court, ‘it would be reasonable’ to expect Vimeo to use the existing technology ‘to identify [ex-post] the specific audiovisual content illegally published on its website, following the appropriate request’ received by Mediaset.
Vimeo, having ‘limited itself to remove from its own website only the infringing contents’ Mediaset had identified with the URL ‘without making any further effort made possible by the state of the art to also identify and remove further audiovisual contents’ extracted from the same television programmes (reported by the copyright holder in the requests), had not been diligent. The Court also observed that Vimeo had never even argued ‘what detriment its hosting provider activity would have suffered if it had adopted the available technologies to carry out the necessary verification and control activities’.
Regarding the damages the Court used – as a benchmark – settlement agreements made between Mediaset and different providers and ordered Vimeo to pay Euros 563,00 for each minute of the videos unlawfully published.
According to the Court of Rome, the actions which – pursuant to Article 14 of Directive 2000/31 EC – must be taken by providers ‘upon obtaining knowledge of facts or circumstances from which the illegal activity or information is apparent’ may vary over time and must be assessed in the light of technological developments.
While waiting for the Supreme Court’s decision on a case concerning similar issues – expected in the coming months – the web giants will have to assess whether the procedures currently implemented to protect copyright are appropriate or if the principles expressed by recent case-law require them to update such policies taking into account their duty to remove infringing content using existing technology.