Kilari and Valentina Ponzone

For the first time under Italian law a platform (Facebook) has been found liable for hosting third- party links to unlicensed content.





The decision was issued by the Rome Court of First Instance a few days ago: it is Tribunale di Roma, sentenza 3512/2019.

YouTube referral (C-682/18) currently pending before the Court of Justice of the European Union (CJEU) [Katpost here . The judgment is both interesting and important, also considering thecurrently pending before the Court of Justice of the European Union (CJEU)





Let's see more in detail what happened and how the Rome court reasoned.

Background





intro to the Italian version of Japanese animated TV series Kilari. The profile also contained a photograph of Ms Ponzone dressed up as character Kilari, and links to videos hosted on YouTube and consisting of extracts from the Broadcaster Reti Televisive Italiane SpA (RTI) and singer Valentina Ponzone sued Facebook over the creation, on the latter, of a profile that hosted unlicensed videos and defamatory comments relating to Ms Ponzone's performance of the. The profile also contained a photograph of Ms Ponzone dressed up as character Kilari, and links to videos hosted on YouTube and consisting of extracts from the animated TV series





Facebook received 5 requests to deactivate the profile at issue, as well as removing all images, videos, and links. The relevant profile was only removed in 2012, ie 2 years after the first request had been sent.





RTI and Ms Ponzone submitted that Facebook would be liable for defamation and violation of image rights, as well as infringement of RTI's exclusive rights over Kilari and trade mark 'Italia 1'. They also claimed damages for EUR 500,000 (EUR 250,000 for Ms Ponzone and EUR 500,000 for RTI).





Article 16 of the Italian Legislative Decree 70/2003 (corresponding to Article 14 of the E-commerce Directive) and having no monitoring obligation as per Article 17 of the Decree/Article 15 of the Directive. Facebook responded that, first, the Italian court would have no jurisdiction and, second, that no liability could subsist, it being eligible for the safe harbour protection under(corresponding to Article 14 of the) and having no monitoring obligation as per/Article 15 of the Directive.





The decision





The Rome court dismissed both arguments raised by Facebook.





Jurisdiction





Brussels I Regulation recast, in particular the decision in Hejduk here] . With regard to jurisdiction, the judge found that Article 5(3) of the Brussels Convention would apply. The place where the harmful event occurred must be intended not as the place where the infringing content was uploaded, but rather as the place where the damage is felt, that is where the victim resides or exercises its economic activity. In this case, this place would be Italy. This conclusion would be in line with CJEU case law on the, in particular the decision in

Terms of Service would be inapplicable to the case at issue, as it relates to contractual disputes between the platform and its users, not actions brought in tort. Thus, the relevant jurisdiction clause in Facebook'swould be inapplicable to the case at issue, as it relates to contractual disputes between the platform and its users, not actions brought in tort.

Liability





With regard to the content of the comments, the court concluded that they had defamatory character.





Filmspeler here] and Renckhoff here] - the Rome court held that [the translation from Italian is mine] : Of particular interest is the conclusion reached with regard to the publication of links. By referring to relevant CJEU case law - in particular the recent decisions inand- the Rome court held that

The publication of RTI's audiovisual content through Facebook is an act of communication to a new public in that it is a public other than the one authorized by the claimant. Indeed, the links published through the Facebook page led not to content published by RTI itself through its own platform, but rather content published through a third-party site (YouTube) not authorized by RTI to making available the audiovisual content at issue. It follows that, lacking a specific authorization by RTI, the making available to the public (through a third-party portal) of the intro to animated series 'Kilari' must be considered unlawful. The above appears to suggest that to display content on YouTube the relevant rightholder's permission would be needed, but the court failed to elaborate on this (important) point.

What the court discussed a bit more at length is (1) how the infringing content is to be notified and (2) the liability of Facebook.





The Rome court first recalled that the safe harbour for hosting providers only applies to providers that are passive. If a provider acquires knowledge - ex post - of the infringing activity, it has a duty to act expeditiously to remove or disable access to the relevant (notified) content.





[this is not the first time: see, eg, here to notify a provider of an infringing activity it is not necessary to submit the relevant URL for each and every infringement. The first request that RTI submitted contained a URL to the Facebook page where it was possible to subscribe to a group that would allow one to read the relevant comments and view, by clicking on the links, the videos. In any event, [again, the translation is mine] : According to the Rome courtto notify a provider of an infringing activity it is not necessary to submit the relevant URL for each and every infringement. The first request that RTI submitted contained a URL to the Facebook page where it was possible to subscribe to a group that would allow one to read the relevant comments and view, by clicking on the links, the videos. In any event, the indication of the URL is technical information which does not coincide with the individual infringing contents available on the digital platform, but only represents the 'location' where such contents are available and, as such, is not an indispensable element for their localization