Italy: It's Not Important Who You Are, But What You Do! Recent Italian Case-Law On Provider Liability

Last Updated: 31 August 2011

Article by Avv. Felix Hofer1

1. The stir caused by the so-called 'Google Case'2 had not entirely faded, when the issue of 'provider liability' shifted again in the focus of Courts on both sides of the Atlantic, in the US3 as well as in a number of European countries.

The lawsuits primarily involve problems originating from the use of particular marketing techniques (such as online searches making use of keywords identical to registered trademarks) and from the presence on online platforms of third party (user generated) content, practices both deemed eventually capable of infringing on intellectual property rights. One of the main legal issues flagged to the Courts' attention is that of assessing to which extent providers – delivering 'communication services' - may benefit from liability exemptions with respect to illegal conduct performed or illegal content uploaded by their clients.

2. In Europe courts in countries members to the EU have to approach this aspect considering the provisions of the so-called 'E-Commerce' Directive4, which sets a range of general principles and criteria, meant to delimit the range of cases in which intermediary providers of services of the information society may be held liable for what their clients do on the platforms they are administering.

The Court of Justice of the European Union (CJEU) on several occasions5 had to dwell into this problem and has offered some guidance on when and how intermediary providers may incur into liability while delivering their services.

In a recent and widely commented decision (on the L'Oreal vs. eBay case)6 the Court's Grand Chamber gave, in its findings, relating to the specific aspect of provider liability for hosted third party content, the following indications7 (which – given the length of the decision – are necessarily reported here in summarized and therefore approximate terms)8:

  • the fact that a provider administering an on-line platform offers its clients to 'memorize' their information does not imply liability exemption under article 14/1, automatically and in all cases,
  • in order to achieve such effect (of exemption) it's required that the service delivered to clients does not exceed the context and role typical for an 'intermediary provider' (i. e. has to result strictly limited to performing the service 'neutrally' through merely technical and automated processing of the information received from clients),
  • accordingly, any time a provider operating an online marketplace enters into an 'active role' (e. g. by extending its services in a way to achieve actual knowledge of the content or control over the information uploaded, or by providing assistance in promoting or optimizing users' data), he'll be prevented from legitimately claiming the exemption offered by Article 14/1,
  • but even when an operator of an online platform maintains the role of a provider of services neutrally performed, he may become exposed to liability for hosted third party content when he has 'actual knowledge' (or based on fact s or circumstances could have easily achieved such awareness by making use of a level of diligence reasonable for an economic operator) about the presence of illegal information on its platform or of illegal activities conducted there,
  • according to the provisions set by Article 14/1 the 'awareness requirement' refers to all situations in which the provider achieves - through any suitable mean - knowledge about unlawful content or activities (both, directly, e. g. as a result of a specific investigation, as well as indirectly, e. g. through a third party notification), while proper and expeditious reaction for taking down and blocking illegal content and conduct will also result relevant,
  • it's up to national Courts examining and assessing, on a case-by-case basis, whether the factual premises and conditions giving raise to providers' liability are met or not, whether an online operator has stepped from the position of providing intermediary services neutrally into an 'active role', whether he has achieved (or based on a suitable level of 'diligence' could/should have had) knowledge about unlawful acts occurred on his platform and in case of such awareness and, finally, whether he has taken proper and timely action to prevent the continuation of such acts.

In the light of such surrounding scenario – and specifically in the context of the tasks falling into the competence of national jurisdiction - Italian Courts recently had to decide on issues of provider liability.

Again the controversy originated from assumed infringement of intellectual property rights.

3. In one case the local licensee and distributor of a foreign movie objected against three major Internet companies giving access – through their portals – to audiovisual files allowing to watch the particular movie.

The Italian company argued that offering such unauthorized access resulted in counterfeiting and acts of unfair competition and therefore approached First Instance Court ("Tribunale") in Rome, Special Section competent on intellectual and industrial property, seeking a temporary injunction meant to:

  • remove the links allowing unauthorized access to the movie,
  • achieve measures suitable for preventing further infringement,
  • obtain a penalty of Euro 1.000,00 for every minute (and of Euro 10.000,00 for every day) of delay in compliance,
  • have the Court's cautionary measures published in a number of nation wide distributed newspapers.

The defendants brought up several preliminary procedural issues and two of them actually succeeded in getting excluded from the proceeding after substantiating that their Italian subsidiaries did not offer and provide the services questioned by the plaintiff (being such services performed by companies and through technical equipment located outside of Italy in other countries). On the merits they claimed that they should benefit form the provider liability exemption as laid down in Directive no. 31 of 2000 and in the national implementing provisions9.

The Court therefore allowed the injunction proceeding to stay against the third Internet company, felt that with respect to the remaining defendant the issue of a potential 'contributory infringement' (for giving unauthorized access to content protected by copyright) had to be considered and therefore

Found10 that:

  • web searches leading to a list of links giving access to source sites doe not imply, per se, an active and contributing role of the provider delivering the search results (which he doesn't know in detail neither does monitor or control in advance as to source sites' content),
  • such position changes once the provider achieves specific knowledge about the fact that on certain source sites – identified by specific URLs - illegal content is present, as he then has the possibility of intervening ex post by preventing further indexing and access,
  • the legal framework (both 'community law' as well as Italian regulations) currently governing the topic establishes a provider liability exemption – as an exception to the general principles set on liability – based on the presumption that pretending from online operators control on information available on the Internet would result in an unreasonable and excessively costly requirement,
  • constituting the specific exemption an exception to the general rule, it could not be extended over the its logical context, i. e. the exemption from an obligation of general monitoring, and therefore could not be interpreted as an exclusion of performing control on 'specifically individuated information',
  • in the case brought before the judge the defendant had acted as a 'caching provider' and it was undisputed that, when a web search was performed by using the movie title, the result consisted in a link selection with several of them giving access to sites, allowing unauthorized downloads,
  • the defendant, after receiving a cease and desist letter, informing him about the illegal downloads and inviting him to prevent further performance of such practice, had failed to take action therefore incurring into a contributory infringement no longer covered by the exemption rule (which refers only to general liability).

The Court therefore ordered the defendant to immediately block further access to all sites infringing on plaintiff's intellectual property rights. The injunction did not provide either for the requested informative publication of the order on in the national press nor for penalties in case of eventual delay in compliance as it was felt that the ordered link blocking could require 'technical time' not quantifiable by the judge. Legal fees for the two defendants dismissed from the case on procedural grounds were put onto the plaintiff.

Against such injunction complaint was filed with the Court's panel of judges both, by the original plaintiff (as to legal fees put onto him and as to denial of the decision's publication) as well as by the succumbing Internet company (seeking a complete overturn of the injunction and for total dismissal of all of plaintiff's claims).

After examination of the two complaints the Court held11 that:

  • the earlier decision appeared absolutely correct as to the statements issued on the procedural issues (and therefore confirmed dismissal of all claims as to two of the Internet companies sued and awarded additional legal fees for the complaint proceeding),
  • the Italian provisions12 implementing EU Directive no. 31 of 2000 set13, as a general principle to apply to all providers delivering services such as mere conduit, caching or hosting, that these online operators do not bear a generalized obligation neither as to monitoring or controlling information they transmit or memorize nor as to actively investigating facts or circumstances indicating illegal conduct being performed on their platforms (while such operators are required to: (a) inform, without delay, judicial and administrative authorities in charge of surveillance functions, when they become aware of unlawful conduct affecting a receiver of their services, (b) timely offer the competent authorities, on their request, all information at their disposal, necessary for individuating the authors of illegal activities),
  • in its view, the liability exemption therefore covers all the activities performed by intermediary providers delivering to clients mere transmission and temporary or permanent memorizing services, provided they maintain a neutral and extraneous role with respect to third party content posted to their platforms,
  • the legal framework relevant to the case offers local courts the possibility to require providers, also through urgent temporary injunctions, to adopt cautionary measures suitable to stop illegal conduct and to prevent further performance of unlawful activities,
  • the decision whether to concede or not such extraordinary remedies could not leave out of due consideration the general requirements set for the litigating parties with respect to burden of proof and therefore plaintiff would have had to properly substantiate a range of circumstances such as: ownership of intellectual property rights relating to the movie assumed to have been offered for illegal downloading, nature and relevance of the questioned infringement,
  • in its opinion in the specific case plaintiff had failed to provide such detailed and circumstanced proofs and had just limited its arguments to generic allegations as to unauthorized distribution on the Internet of content reproducing the particular movie,
  • specifically it had to be noted that no specific links, transferring to websites from which illegal downloads did occur, had been indicated (therefore the procedural requirements on burden of proof not resulting properly fulfilled),
  • additionally, in the course of the proceeding it had turned out that plaintiff owned only some of the economic rights of the movie and only with respect to certain countries, therefore being possible that the questioned downloads of the movie could have occurred by referring to legitimate source sites (a fact capable of stressing, in even more stringent terms, that a claim for a temporary injunction necessarily requires plaintiff to provide specific, detailed and substantiated indications both, as to the exact description of the alleged illegal content and the precise relevance of the infringements as well as to target subjects against whom temporary measure should be directed, while it did not appear reasonable to pretend that such indications should be offered by the provider).

On the premises above the Court reverted the initial injunction and dismissed the case also as to the third Internet company.

While the Court's findings, solving the case in the end on mainly procedural aspects, do not offer a neat and conclusive position as to how wide (or narrow) the limits of service providers' liabilities are set under the provisions of EU 'Community Law' and under their national implementing Regulations, they nevertheless seem to deliver one clear message. In the view of Italian Courts such international and local provisions do not offer owners of intellectual property rights an easy "fast track" in order to fight potentially illegal practices such as counterfeiting, peer-to-peer, streaming, etc.

When seeking court remedies, such as temporary injunctions, against infringements performed through these practices, right holders won't be able to rely on presumptive evidence, but instead will need to:

  • exactly describe nature and relevance of the alleged violations,
  • provide details, as much circumstantial as possible, as to the authors of illicit conduct (or, at least, as to the source sites and the specific pages where unlawful activities occur),
  • give evidence, when their reaction takes place after some time, why they did not object initially and why the situation had worsened to a point where their rights or business are suffering harm or economic prejudice no longer acceptable,
  • offer very specific indications (both as to exact description of content they consider illegal as well as to the origin of such content, by providing links or URLs), when approaching providers with take down or blocking requests (while no 'excessive' cooperation or investigation are to be pretended and expected on providers' side).

In other terms, when platform use policies offer no satisfying and efficient approach for blocking infringing content, reacting against unlawful activities will involve (sometimes quite significant) costs and a certain amount of 'legal high tech'. Amateurish approaches could therefore easily result disappointing.

4. In 2011 a First Instance Court ("Tribunale") in Milan was asked to issue cautionary measures in an urgency proceeding.

Plaintiff explained that he was a business man active in the financial sector where he did organize and conduct training and educational courses preeminently promoted and advertised via the Internet. He then reported that, while performing a web search on one of the major search engines with respect to his name, he had to find out that a specific application (called "suggest search") recommended to extend the search to terms such "fraud" or "fraudster".14

Considering such association as patently false, highly defamatory and detrimental to his business and professional image, the plaintiff sought for a temporary injunction ordering the search engine to immediately remove the offensive association from the software governing the "suggest search" application and to award a penalty for any day of delay in compliance. He also argued that in the specific case the association of his name with the defamatory terms did not originate directly from information memorized by the defendant's servers, but were clearly the result of a manipulation performed by software specifically created by the Internet company (and used without putting in place any cautionary measures, such as 'filters', apt to prevent inappropriate suggestions and serious prejudice to personal rights benefiting from protection on a constitutional level). He finally complained about the fact that irrespective of his notification of an immediate take down request, the search engine company had shown no reaction at all. The action was grounded both on the provisions of the Italian Civil Code ruling on liability and damage compensation for illicit acts15 as well as on the principles established by EU Directive no. 31 of 2000 and its local implementing regulation16 .

Defendant argued that none of the cases, in which the Directive and the national implementing rules provide for provider's liability, could actually be found with respect to plaintiff's claims and that a clear misreading had occurred with respect to the functioning of its 'suggest/autocomplete' service. In the defendant's view the mere proposal of extending the search to the questioned terms did not automatically result in defamation to the plaintiff as users following the suggested indications was transferred to pages and documents not containing content offensive to plaintiff.

The Court accepted the complaint and ordered17 – as an interim cautionary measure – the search engine to remove form the 'suggest/autocomplete' software the association between plaintiff's name and the terms 'fraud' and 'fraudster'; a penalty for delay in compliance was also granted.

Defendant complained to the panel of judges of the Court against the injunction and in his grounds for the appeal argued that the previous judge had clearly erred:

  • in reading the functioning of the 'autocomplete' service,
  • in asserting the defendant's liability as an Internet service provider,
  • in affirming that plaintiff had suffered prejudice from the association of his name with the questioned terms.

4.1. On the first argument, where the Internet company tried to assume that the suggestion of search term combinations/extensions was not a process created by its software, but rather a 'picture' (a mere statistical report) of the most popular searches performed by platform visitors, the Court disagreed and dismissed it18 finding that there was no point in denying that the association of the terms originated from processing of collected information and from combining – by filtering - such data with the most frequently used search terms.

4.2. The Court then passed on to examining the Internet company's assumption, according to which, acting in the role of a 'hosting provider', it would certainly benefit from the liability exemption laid down in EU Directive no. 31 of 2000 and in the Italian implementing provisions with respect to third party content available on online platforms.

First of all the Court felt necessary to define defendant's role and activities and found that the company:

  • in its business is active as an Internet service provider,
  • specifically offers search engine services,
  • in performing such services acts as an 'information intermediary' by making use of: a technology platform, data bases of indexed texts and software capable both, to catch and organize data as well as to run the search engine and to offer access to collected information to visitors,
  • in conclusion, plays the role of a 'hosting provider', assigning space on its servers to third parties acting autonomously.

On such premise the Court finds that according to the existing legal framework19 hosting providers are not liable when they're not aware of illegal content or when they, after achieving knowledge about unlawful activities, act timely in order to remove or block access to such improper information. In addition, the regulations do not provide for a general obligation of monitoring or investigating potential unlawful activities, but set only a duty to inform the competent authorities both, about such activities as well as about the elements necessary for identifying the authors.

The Court then continues in assessing that in the specific case the services performed by the defendant as a 'hosting provider' had actually not been questioned by the plaintiff nor had been considered by the first instance decision. Subsequently defendant's reference to the legal framework governing hosting service appeared to be improper and not relevant for the case, as the dispute is purely about the 'suggest/autocomplete' service.

In the course of the dispute clear explanations had been given about how this specific service works, which basically facilitates users by confronting them – after search terms are submitted – with a list of proposed 'related terms'; the software (through its 'autocomplete' function) then automatically aggregates all the related information (originating from third parties) present on the web, while an algorithm selects the search terms most frequently inserted by users within a certain time frame.

Given such functional characteristics, the Court feels that the association between the plaintiff's name and the questioned search terms is clearly the result of the software used by the defendant, capable of optimizing searches in the data bases present on the company's platform. By organizing and aggregating search terms and by selecting users' key words according to certain criteria, the search engine operator interferes with visitors' searches – directing or, at least, trying to direct them with the list of related terms towards specific content – and by doing so takes upon himself liability20 for any harmful effect eventually deriving from the particular service. This is patently the result of a business strategy with a primarily commercial intent, meant to promote the engine's use by offering visitors functional advantages and search facilities. The company therefore may not reasonably claim to act in a completely 'neutral' role and to be totally unrelated to the prejudice derived from its service to the original plaintiff.

4.3. On the final argument (denying immediate and defamatory effects deriving from the association between plaintiff's name and the questioned terms) the Court also disagreed with the search engine company. It found that the average user would easily be induced by the association to doubt about the named subject's moral integrity and it did not consider relevant that a visitor, when following the suggested terms, would not land at content actually offensive to the original plaintiff. The Court felt that a user would actually visit a landing page and its content only if moved by a specific interest, while generally – when remaining at the starting level of the search – he would remain with the initial negative impression about the named subject. It did not 'buy' the company's defense according to which Internet user are perfectly capable of correctly interpreting, evaluating and therefore selecting links found through their searches; for the Court 'sophisticated users' such as described by the defendant were still a minority among people surfing the Internet.

The Court therefore dismissed the complaint, confirmed the first instance injunction and served the search engine company with the legal fees for the proceeding.

5. Previously, in 2010, the issue of provider liability had come up in another copyright case dealt with by a First Instance Court in Rome21, again in an urgency proceeding filed in order to obtain a temporary injunction.

Then a local association of producers and distributors of audiovisual content approached the Court in Rome reporting that:

  • as a result of a seven months period of online monitoring it had ascertained that more than 2.200.000 unauthorized accesses (with illicit downloads) to nine copyright protected audiovisual works had occurred,
  • for such activities the Internet services of the defendant (a local Telco) had been used,
  • a cease and desist letter asking for an access block to the source sites and for making available to the competent authorities the Internet addresses of the offenders had not received reaction.

Persisting the unlawful activities, plaintiff had been forced to take action before the Court and to seek for adequate cautionary measures.

In the proceeding litigating parties were joined by the Italian Authors' and Publishers' Association with support for the plaintiff and by the Italian Privacy Commissioner (as personal data processing was involved) and by the Association of Telecommunication Providers in support of the defendant.

As legal basis for his action the plaintiff alleged 'contributory infringement' and violation of the obligations, which the national implementing regulation22 of EU Directive no. 31 of 2000 put onto Internet services providers.

In its decision23 the Court, after a comprehensive review of all provisions governing the activities of operators offering Internet services concluded that such service providers had to comply with the following general criteria:

  • duty to timely inform the competent authorities about activities presumed, when discovered, to be unlawful,
  • obligation to provide authorities, on their request, with all information available, apt to identify the authors of illicit conduct,
  • possibility to be addressed – by the competent authorities – with requests for urgent measures suitable to halt the violations,
  • potential liability for unlawful activities in case they fail in complying with the instructions received from authorities or when they – after achieving knowledge about their services being used for acts prejudicial to third parties – fail in reporting such acts to the authorities.

On such premise the Court disagreed – and therefore dismissed – the argument according to which the Telco, once received plaintiff's notification about the unauthorized downloads, was held to arrange for an immediate block of access to the infringing sites. In the judges view such an obligation, while potentially existing for hosting providers, could not be reasonably claimed for the defendant, exclusively offering connection services (a fact not disputed by the plaintiff).

Therefore it had to be assessed whether the defendant could be held liable under the provisions set by Articles 1424 and 1725 of Legislative Decree no. 70 of 2003, a question the Court answered in negative terms, considering that the provider had:

  • not interfered with the information transmitted,
  • not received any request from the competent authorities requiring him to adopt measures for stopping/preventing infringements,
  • not been addressed by such authorities for information necessary to identify the authors of illicit conduct,
  • no possibility (nor would he have been entitled) to arrange for access blocks, given the generic indications contained in plaintiff's take down letter.

In the end, in the judges' view, the defendant had only failed to timely report to the competent authorities the unlawful activities flagged by the plaintiff. According to Article 17/3 such omission may cause defendant's joint and several liabilities, but clearly implies the necessity of a prior ascertainment of third parties' illicit conduct. Being the actual offenders not part to the injunction proceeding, it wouldn't appear reasonable to oblige the defendant to put in place the blocking measures sought by the plaintiff. Such measures appear to be outside the scope of an injunction proceeding and are reserved to the competence of the Court approached on the merits of the case.

Subsequently the Court found that plaintiff's claims could be accepted only with respect to his request to order the defendant to immediately report to a Public Prosecutor all the information received26 in relation to the alleged violations. The injunction issued by the Court was therefore limited to ordering the Telco to perform such reporting to the Public Prosecutor. Given this outcome of the proceeding, the Court didn't find grounds for awarding costs and legal fees.

6. To conclude, these cases show that local Courts are not willing to offer providers a free pass and to grant them an automated liability exemption with respect to activities performed on their online platforms. They rather prefer to carefully examine - and to define - proceedings brought in front of them on a case-by-case basis, where providers' actual role and the way they organize and perform their services are scrutinized with great attention.

Therefore online operators will be well advised to thoughtfully consider in advance potential risks related to their businesses and to have a suitable strategy in place in order to cope with unlawful activities eventually discovered on their platforms or brought to their attention by users.

(as per end of August 2011)

Footnotes

1. Felix Hofer is a named and founding partner of the Italian law firm Studio Legale Associato Hofer Lösch Torricelli, in Firenze (50132), via Giambologna 2/rosso; he may be reached through the following contact details: Phone +39.055.5535166, Fax +39.055.578230 – email: fhofer@hltlaw.it (personal) or info@hltlaw.it (firm e-mail).

2. Case no. 14667/2008 (General Court Register) - no. 47061/2006 (Public Prosecutor's Register), First Instance Court in Milan - Fourth Criminal Chamber, Judgment no. 1.972 of February 24th - April 12th, 2010 (Magi J), which found managers of a online platform provider guilty of privacy infringement. For details on the case see my article published – in English - in the June issue of CRi (Computer Law Review International) 2010, pp. 81 – 84. For information about how to access the full text of the article contact CRi at http://www.cr-international.com/.

3. E. g. decision by the New York State Court of Appeals, Shiamili v. The Real Estate Group of New York, (N.Y. June 14, 2011) (with respect to section 230 of the federal Communications Decency Act ("CDA"); the U.S. District Court for the Northern District of Illinois Flava Works, Inc. v. Gunter, N.D. Ill., 1:10-cv-06517 (order dated 05/10/ 2011) (with respect to Section 512 of the Digital Millennium Copyright Act (DMCA); the District Court for the Southern District of New York (Stanton J), Viacom v. Google, June 23rd, 2010 (Viacom has appealed the decision on December 3rd, 2010).

4. Reference is to Directive 2000/31/EC of 8 June 2000 "on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)"; the specific aspect is dealt with by the Articles from 12 to 15; the Directive's text may be found at the following URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML. Article 12 governs "Mere conduit", Article 13 "Caching" and Article 14 "Hosting", while Article 15 refers to "No general obligation to monitor".

5. See Grand Chamber judgment March 23rd, 2010 in Google France, Google Inc. vs. Louis Vuitton Malletier (C-236/08), Viaticum SA, Luteciel SARL, Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL, Cases C-236/08, C-237/08, C-238/08.

6. Judgment of the Grand Chamber dated July 12th, 2011 in case C-324/09.

7. In this case the Court of Justice particularly puts its focus on two aspects: (1) whether a hosting provider's services fall within the criteria and regulations laid down in Article 14/1 of the Directive, and, in case the answer should result affirmative, (2) under which premises 'awareness' in the meaning of Article 14/1 (and subsequently 'liability') will occur; for a better understanding I report the text of Article 14 ("Hosting") of the Directive: "1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient 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 not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information."

8. The judgment contains many other useful indications, e. g. on copyright, trademark and enforcement issues, which laying outside of the scope of this paper, are not mentioned, but definitely are illuminating to the interested reader.

9. Legislative Decree no. 70 of April 9th, 2003.

10. Decision ("Ordinanza") dated March 20th, 2011, Muscolo J.

11. First Instance Court ("Tribunale") in Rome, 9th Chamber, Special Section competent on intellectual and industrial property, decision ("Ordinanza") dated June 16th – July 11th, 2011.

12. i. e. Legislative Decree no. 70 of April 9th, 2003.

13. Such principle is expressly affirmed in Article 17 of Legislative Decree no. 70 of 2003.

14. In the course of the judicial proceeding it turned out that the association presumably originated from the fact that the plaintiff had made use of the terms in one of his articles published online.

15. Reference is to Article 2043 of the Italian Civil Code, which sets that: "Any fraudulent, malicious or negligent act that causes unjustified harm to another subject obliges the person who has committed the act to compensate damages" (N.B. The translation is not an official one, but mine).

16. See footnote no. 8 above.

17. Decision ("Ordinanza") issued on January 25th, 2011.

18. Decision ("Ordinanza") issued on March 31st, 2011.

19. As contained in EU Directive no. 31 of 2000 (and specifically in Articles from 12 to 15) and Legislative Decree no. 70 of 2003 (and specifically in Articles from 14 to 17).

20. Under the general rules of Civil Law and specifically under the provisions set by the local Civil Code on the obligation of an author of illicit acts to compensate damages deriving from his conduct (as per Article 2043).

21. "Tribunale Roma" - Special Section competent on intellectual and industrial property.

22. Reference is again to Legislative Decree no. 70 of 2003 (and to Articles 14, 16 and 17).

23. "Ordinanza" issued on April 14th, 2010.

24. Governing mere conduit services and stating that providers are exempt of liability when they do not: (a) give origin to information's transmission, (b) select the destination subjects of the transmission, and (c) modify or select information transmitted.

25. Affirming the absence of a general surveillance obligation and fixing providers' duties as to reporting unlawful activities to the competent authorities and as to delivering the information necessary for individuating the potential infringer.

26. Reference is to plaintiff's initial take down request.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions