The Rome Court of First Instance has found Facebook liable for hosting third-party links to unlicensed content. The decision was handed down in February, after the Italian broadcaster Reti Televisive Italiane SpA (RTI) and the singer Valentina Ponzone sued Facebook for creating a profile for the singer, and using it to host unlicensed videos and defamatory comments of her recording of an Italian version of a theme song to a Japanese television show, Kilkari.

The Facebook page for Valentina Ponzone contained photos of her, and links to YouTube videos of the theme song.

The first request to remove the profile was submitted in 2010, and four more requests to remove the profile and the links followed. Facebook eventually removed the profile in 2012.

RTI and Valentina Ponzone alleged that Facebook was liable for defamation, violation of image rights, and that Facebook had infringed RTI’s exclusive rights in relation to Kilkari and their trade mark “Italia 1”. The parties sought damages – €500,000 for RTI, and €250,000 for Ms Ponzone.

Facebook contended that the Italian Court did not have the jurisdiction to decide on the matter, and that they were eligible for the safe harbour protection under Article 16 of the Italian Legislative Decree 70/2003 (corresponding to Article 14 of the E-commerce Directive).

EU Law states that online intermediaries that provide “information society services” may benefit from exemptions from liability when carrying out certain passive activities.   These “safe harbours” are contained in the E-Commerce Directive (2000/31/EC).  The safe harbours are provided for “mere conduits” (Article 12); those providing “caching” services (Article 13); and “hosts” (Article 14).

The conditions for each safe harbour differ, but the passive nature of the service provider’s role is common to each condition. Hosts, however, lose the benefit of the Article 14 exemption if, upon receiving actual knowledge of illegal activity or awareness of circumstances from which the illegal activity is apparent, the service provider fails to remove or disable access to the illegal content.

The Court dismissed these arguments. The Court found that Article 5(3) of the Brussels Convention would apply, so the Italian Court did have jurisdiction to decide on the matter. The Article states that the place where the damaging event occurred does not have to be intended as the place where the relevant content was uploaded, and is instead the place where the victim lives or exercises economic activity. Therefore, as the victim lives in Italy, the Italian Court was entitled to rule on the matter.

In relation to Facebook’s second argument, the Court held that the comments were defamatory, and the safe harbour exception did not apply. The Court felt that Facebook did not provide the diligence that can be expected of a hosting website, and as a result they were found liable by omission.

The decision is interesting as it discusses the publication of links. The links published in this case directed users to third party content, rather than the content published by RTI or Ms Ponzone. The decision suggests that to display content anywhere, including on websites like YouTube, permission will be needed.

The Court did not elaborate on this issue, however it is likely to impact the pending decision in the YouTube referral (C-682/18), and is likely to be discussed in greater detail. Hopefully the Courts will develop the concept further, including considering whether the hosting website needs to have a certain level of awareness, and how specific a request to remove the infringing content needs to be.