Italian court finds Facebook liable for hosting infringing content
Facebook has been handed a defeat after an Italian court found it liable for hosting links to unlicensed content.
In the judgment, issued by Tribunale Roma on February 15, the court backed broadcaster Rete Televisive Italiane (RTI) and Italian singer Ponzone Valentina, who sued Facebook over a profile that linked to a performance by Valentina on a TV show.
The profile featured Valentina performing the intro theme in the Italian version of the Japanese anime program Kilari. It also linked to extracts of the show on YouTube, and posted photographs of Valentina dressed up as a character from the series.
RTI said that it was the exclusive licensee of rights to the program in Italy, including the rights to Valentina’s performance. According to the court, Facebook was“repeatedly warned” of the infringing content, but the profile was only disabled in January 2012, two years after the first complaint.
Facebook argued that the Italian court had no jurisdiction over it, or its Irish subsidiary which acts as its European headquarters. The social media platform also said that it was entitled to protection under the safe harbour protection in Article 16 of the Italian Legislative Decree 70/2003.
In the judgment, the court asserted its jurisdiction in the case, citing Article 5(3) of the Brussels Convention, which assigns jurisdiction to courts in “the place where the harmful event occurred”.
The Italian court interpreted this as meaning the place where the victim’s rights were infringed, rather than where the content was uploaded.
The court also ruled that the safe harbour provision for platforms was only available to “passive” providers. Eleonora Rosati, of counsel at Bird & Bird in London and Milan, said in a blog post that when a host is informed of infringing content on its platform, “it has a duty to act expeditiously to remove or disable access” to the material.
According to Rosati’s translation of the judgment, the court concluded that Facebook had “failed to adopt all measures that could be reasonably expected in the case” in order to prevent access to the infringing content.
Rosati noted that it was the first instance of a company being found liable for hosting third-party links to infringing content under Italian law.
The court awarded damages of €15,000 ($17,031) to Valentin and €15,595 ($t17,707) to RTI in addition to legal fees.
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