Is the mere indication of the titles of the TV programmes whose extracts must be removed sufficient to trigger a hosting provider’s duty to act in compliance with what is provided for in Article 14 of the E-Commerce Directive? When does a hosting provider lose its safe harbour protection?
As readers know, these are questions that Italian courts have been asked to address several times over the past few years. Some readers might also recall the
odd interesting responses provided by the Tribunale di Roma (Rome Court of First Instance) on a number of occasions [eg here, here and here].
Among other things, in its 2016 judgment in RTI v Break Media [noted here], the Rome court answered the first question above in the affirmative, and also tried to clarify when a hosting provider loses its safe harbour protection. The decision was rendered in the context of litigation between RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset) and Break Media, a company operating video sharing platform break.com. The action concerned the alleged liability of the latter for unauthorised streaming of the claimant's TV programs over break.com, a site in respect of which the defendant denied to exert any control or have any editorial responsibility.
The Break Media decision was appealed. A few days ago the Corte di Appello di Roma (Rome Court of Appeal) substantially confirmed the decision at first instance (TMT Enterprises LLC Break Media v Reti Televisive Italiane SpA, sentenza 2833/2017, RG 4046/2016, also commented on Marchi & Brevetti).
The decision of the Court of Appeal is arguably VERY good news for rightholders, but also raises a number of questions regarding the overall take on the system of the E-Commerce Directive.
Having rejected Break Media’s claim that Italian courts would lack jurisdiction to hear the action initially brought by RTI, the Court of Appeal addressed the issue whether Break Media could be eligible for the safe harbour regime within Article 16 of Decreto Legislativo 70/2003, ie the provision by which Italy implemented Article 14 of the E-Commerce Directive into its own legal system.
Break Media as an active host
The Rome Court of First Instance had excluded that Break Media could be regarded as a passive host, in that its own activity would not be merely finalised to providing technical assistance. On the contrary, Break Media should be regarded as a content provider [to be more precise: an “active aggregator”] and, as such, be excluded from the benefits of the safe harbour regime, including the absence of a general monitoring obligation.
The Court of Appeal confirmed this point. It held that Break Media’s activity is “more complex” than just providing a technical support. Its own activity – according to the Court of Appeal – is in fact linked to the “knowledge and evaluation of the content available on its digital platform”. This would be particularly demonstrated by the fact that:
· Break Media selects the audiovisual content to be linked to advertisements, based on the number of visualisations;
· Break Media places the content in different categories, also thanks to the help of a dedicated editorial team and with the objective of linking it to specific advertisements.
According to the Court of Appeal, the case of Break Media would not be comparable to that of other providers at the centre of cases decided by the Court of Justice of the European Union (CJEU). This would be so because in all the cases examined by the CJEU and unlike Break Media, the providers at issue, eg Telekabel (internet access provider) and Mc Fadden, provided a merely technical service.
The Court of Appeal also noted that, even assuming that Break Media was eligible for the safe harbour regime, it should have acted expeditiously to remove access to RTI’s content upon becoming aware of its unlawful character.
But when did such obligation to act arise?
According to the Court of Appeal, that was when Break Media received RTI’s cease-and-desist letters indicating the titles – but not also the URLs of the relevant files – of the TV programmes whose relevant extracts should be removed from Break Media’s platform.
According to the Court of Appeal, upon being notified of such titles Break Media would have also had the obligation to prevent any future uploads of extracts from such TV programmes.
As mentioned – besides inviting all rightholders to litigate their cases in Rome – the decision raises some questions.
First, in relation to the point that Break Media would not be a passive host in that it selects the content to be linked to advertisements, the Court of Appeal did not address whether it would make any difference whether such selection takes place manually [as in some cases it appeared to be the case of Break Media] or – rather – automatically, eg by means of an algorithm connected to the number of visualisations. This is a crucial aspect because, if the latter could be also regarded as indicative of an active role of the provider, then many other user-uploaded platforms should be regarded as ineligible for the safe harbour regime.
The second aspect concerns the content of a valid takedown notice, and the subsequent obligations of a hosting provider. The position of Rome courts regarding the validity of notices only containing the titles of relevant works is in contrast with the approach of other Italian courts, eg the courts in Milan and Turin [of course in Italy there is formally no system of binding precedent]. Only a few days ago, the Turin Court of First Instance confirmed that a valid takedown notice is one that indicates the specific URLs of the files that the relevant rightholder seeks to have removed from a hosting platform.
Finally, it is worth spending a few words on the point made by the Court of Appeal that the mere indication of the title of a TV programme would not only trigger an obligation to remove all existing files associated with such TV programme, but also prevent any future uploads. Besides the possible consideration whether an obligation of this kind could be regarded as general (and thus, contrary to Article 15 of the E-Commerce Directive) rather than specific, it should be noted that the titles of many TV programmes at the centre of this litigation, eg ‘Buona Domenica’ (‘Have a good Sunday’) and ‘Matrix’, were fairly generic or identical (‘Matrix’) to the titles of other copyright works. As a result, one might wonder how many false positives Break Media’s filters would return and – with them – how many videos, which have nothing to do with RTI’s programmes, might be erroneously removed.
[Originally published on The IPKat on 10 May 2017]