YouTube case changes rules on Internet liability

by DLA Piper

The Internet liability regime for hosting providers have been subject of different interpretations by courts in Italy and a new interesting position came up with the decision of the Court of Turin (Italy) involving YouTube and Google which overturned its initial decision of a few months ago introducing new principles of Internet liability for online operators.

We had reported in this article about the recent victory of YouTube in an interim proceeding before the Court of Turin where it was found not liable for the videos published on its video sharing platform by its users in breach of Delta TV Programs’ intellectual property exploitation rights.

Now the Court of Turin reached quite different conclusions as part of the Appeal to such decision.  The Court deeply reviewed the Internet liability exemption regime for hosting providers set forth by the EU E-Commerce Directive 2000/31.  And in particular, the main principle prescribed by the E-Commerce Directive according to which hosting providers are not obliged to monitor the contents published by their users and are liable for them unless once they become aware of them they promptly act in order to remove them.  But the E-Commerce Directive was issued in 2003 and there is no doubt that lots has changed on the Internet in the last 10 years.

Internet liability regime according to the Court of Turin

The position taken by the Court of Turin is that the EU Directive prescribed an Internet liability regime applicable only to hosting providers that are “passive” i.e. merely make available to their users a web space for their contents.  On the contrary, entities like YouTube that index the available information, organize them and show them to their users based on their tastes also showing advertisements from which they gain profits fall under the category of the so called “new generation” of hosting providers that would be subject to a more stringent liability regime.

On the basis of this reasoning the Court held that YouTube was not obliged to monitor contents published by its users, unless the rights’ holder had reported the breach of its copyrights providing the URLs of the challenged videos requiring their removal and the prohibition of their future publication of the same videos on the site.  And the core of the decision is indeed on whether the Court could order YouTube to prevent the future publication of the challenged videos.

Such service is currently offered by YouTube through a tool named Content ID, but only upon request of the rights’ holder who takes on the relevant responsabilities and costs.  The Court of Turin on the contrary held that YouTube is obliged – following a challenging notice from a rights’ holder – to autonomously put in place such tool at its own costs obtaining the so calledreference file from the challenged videos available on its platform not only taking down the existing URLs of the challenged videos, but also impeding the future publication of the same videos by its users with different URLs.

Consequences on Internet liability of the decision

This solution would validate a notice and take down procedure applicable to both current and future challenged contents that is even more effective that the one introduced through recent regulations on copyright breaches occurring on the Internet covered in this article.  At the same time, according to the Court, such approach would be in line also with the decision of  the European Court of Justice in the recent SABAM case where the Court banned any type of direct monitoring aimed  at preventing “any future infringement of intellectual-property rights” since this would have required an “active monitoring” on the users and exchanged information.  The view of the Court seems to be that since YouTube can rely on the Content ID tool no active monitoring was required and the order could be issued.

Therefore it is unclear whether the consequence of such decision is that hosting providers need to put in place a highly sophisticated system such as the one adopted by YouTube or they would better not to do it since in such case courts might deem the requested activity to be excessively burdensome.

Internet liability according to the Court of Milan on Yahoo!

It is interesting that such decision was issued just a few days after the decision on the merits of the Court of Milan involving Yahoo! that we had previously covered in this article with reference to the interim proceeding where the Court took a different position on the Internet liability regime for hosting providers.  In such case Yahoo! had been requested to take down the links on its search engine to the websites allowing the streaming, downloading or the P2P of the movie “About Elly” in breach of the copyright exploitation rights held by PFA Films on the same.  The Court held that Yahoo! is not obliged to deactivate or implement filters and that the removal of the access to the challenged contents could occur only following an order from public authorities as prescribed by Italian law implementing the E-Commerce Directive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.