Liable or not liable… this is the recurring dilemma in many jurisdictions. Is Youtube (Google) liable for the infringing contents uploaded by Youtube users?
Just yesterday the Audencia Provincial Civil de Madrid Seccion Vigesimoctava (which is a court of appeal) substantially confirmed the decision given in 2010 within the litigation commenced by Telecinco against Youtube in Spain.
In a nutshell, Telecinco claimed the liability of Youtube with reference to the videos infringing Telecinco’s copyright, alleging that Youtube acts as a content provider rather than a hosting provider. Accordingly Youtube could not benefit from the exemption provided under Section 15 of the e-commerce directive whereby there is no general obligation on hosting providers to monitor the information which they transmit or store, nor a general obligation to actively seek facts or circumstances indicating illegal activities.
The Spanish Court held again that Youtube acts as hosting provider under Section 15 of the e-commerce directive and it is not liable for the contents posted by the users.
Furthermore the Court determined that Youtube has no actual knowledge of the possible infringing contents it hosts and in any case it is not obliged to monitor the contents hosted.
This Spanish decision comes while we are waiting for the decision of the court of Rome which has been dealing with a similar case since 2009. In a scenario substantially similar, what will it be the outcome in Italy?