Italy: I’ve Shot The Sheriff. Who’s Going To Shoot The Provider?

Last Updated: 18 June 2009
Article by Felix Hofer

During the last months newspapers and on-line sources have been crowded with reports about legislators' plans to police the Internet for a number of different reasons and through various legal means.

An intense debate has heated up at an international level around the so-called "three strikes and you're out" doctrine, meant to limit illegal downloads of or to prevent access to harmful on-line content.

In the context of the discussion the issue of liability providers may face with respect to content posted to on-line platforms has become, once more, a central argument. With a remarkable sense of proper timing in Italy an earlier (and leading) court case is hitting again the headlines of local newspapers.

Back in 2006 the local public opinion was shaken by an episode of "bullying", which involved a group of minors, who recorded themselves with a mobile phone while harassing and beating a young disabled in a classroom of their school. The video was then posted on a web portal (in the Section "Funny Videos").

A local not-for-profit advocacy group, assisting people affected by the syndrome of Down, became aware of the existence of the video, held that the episode resulted in a criminal offense and therefore brought the facts to the attention of the Public Prosecutor in Milan.

The Prosecutor felt that he had to investigate not only with respect to the individuals involved in the bullying episode, but also on the potential liability of several country managers of the company running the web portal. This despite the fact that the Italian subsidiary of the Internet company, as soon as informed about the video's posting, had arranged for immediate removal (within hours from the notice, even before the Prosecutor took action).

The national press reported widely about what happened and an intense discussion started, involving the general public as well as politicians (calling for stricter control on Internet content) and legal experts.

While the episode itself clearly did leave no space at all for disagreement (nobody obviously intending to question the need of immediate action against the youngsters responsible for the bullying), the discussion focused on the legal aspects implied by the proceeding against the Internet company's managers.

In a press release a company spokesman stressed that, once achieved awareness about the episode, instant action had been taken in order to quick take down of the video and unconditional cooperation had been offered to the local authorities. He also explained that the company had a very clear and strict policy, warning users not to post improper content and alerting them that non-compliance would lead to immediate removal as soon as awareness about violations had been achieved. On the other hand, it did not appear reasonable to pretend continuous in-advance monitoring of all the material (inclusive the user generated one) posted on its sharing service, being such control factually impossible, given the amount of contributions uploaded by users. He concluded by stating that, while the company was performing every effort to individuate technical means allowing to prevent improper content to be posted, right now the most effective preventive filter appeared to be "community control", as users generally were eager to report the presence of unacceptable videos.

Domestic legal experts questioned the Public Prosecutor's action in the specific case, considering it hardly compatible with the general principles set by EU Law as well as by local provisions.

Specifically it's been noted that EU Directive no. 31 of 2000 and the Italian implementing Legislative Decree (no. 70 of 2003) in a case like the specific one quite clearly appear to require providers to report illegal acts, when acknowledged, to the competent authorities and to comply with their instructions for immediate access blocking to (and removal of) illegal content.

Considering the company's prompt reaction in the specific case, it therefore appeared all but easy to understand why and from which perspective the Public Prosecutor in Milan had found that the company's conduct could result in wrong doing and in a criminal offense.

After a two-years investigation four Europe based top managers of the search engine (Global Privacy Counsel, Senior Vice President, Chief Financial Officer and Video Executive) face now charges of violation of Italian privacy laws and of contributing to the defamation of the advocacy group, assisting people affected by the syndrome of Down, as well as a claim for civil damages (the charges potentially involve a maximum sentence of 36 months in jail and a significant fine for each defendant found guilty).

The proceeding started before a local criminal Court in February 2009, but won't come to a conclusion before several months. At the initial hearings it's been noticed that family of the victim of the bullying episode performed at school had renounced to appear before the judge handling the case. While it's not known whether an out-of-court settlement with the ISP company did occur, the family's lawyer issued an official statement explaining that the decision was based both, on the reasoning that an appearance before the court would not have resulted in additional – and more effective - protection to the victim as well as on the fact that the ISP company in the aftermath had given proof of sincere and concrete sensitiveness towards the problems of disabled people.

Nevertheless the criminal proceeding before the Court in Milan will continue, as the judge found – for the time being - that the not-for-profit organization, filing the original notice with the Public Prosecutor, had also a sufficient individual standing with respect to the charges of defamation and compensation of civil damages.

It goes without saying that the specific case also involves a broad range of technical legal problems: from questions on jurisdiction to the problem of exact qualification of the criminal offenses actually performed and issues of provider liability under the principles of the EU (so-called "E-commerce") Directive no. 31 of 2000 and the Italian implementing provisions, as laid down in Legislative Decree no. 70 of 2003.

Should the Court share the Prosecutors views on the company managers' criminal liability in the specific case, really tough times would be on the horizon for ISPs.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Felix Hofer
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.