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.

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Felix Hofer
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