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The active Hosting Provider: the latest jurisprudential interpretation (part I)

Diego Ganeo, 2/8/2022

"Safe harbor". Thus the doctrine has defined in the last twenty years the privileged position of the hosting provider with reference to the responsibility of the same for the contents stored by users in the cloud environment made available by them. In particular, pursuant to the combined provisions of Articles 14 and 15, Dir. 2000/31 / EC, there is no general obligation to monitor the information stored nor a general obligation to actively search for facts or circumstances that indicate the presence of illegal activities. On the other hand, there is an obligation to act immediately to remove the information or to disable access to it when the hosting provider becomes aware of facts or circumstances that make manifest the illegality of the activity or information stored by the users.

In this context, it is customary to speak of "passive hosting provider". A liability, moreover, in a broad sense, that international jurisprudence better defines as the neutral provision of the service, through a purely technical and automatic processing of the contents stored by users (CJEU 12/07/2011, case C.-324/09, " L'Oreal v eBay ") or as an activity" of a purely technical, automatic and passive order, with the consequence that said providers (nda: hosting providers) do not know or control the information transmitted or stored by the people to whom they provide their services "(CJEU 7/08/2018, case C-521/17, Cooperatieve Vereniging SNB-REACT UA v Deepack Mehta).

The case framed by international legislation could well adhere to the majority of concrete cases of the last twenty years, when hosting providers were effectively limited to the mere storage of content. Such a "delicate" and minimally invasive approach, however, nowadays appears to be residual. Exemplary, in this sense, is the R.T.I. S.p.A. v Qlipso Inc. and Dailymotion S.A., decided by the Court of Rome in 2021. Following these two sentences, at least according to Italian law, the "safe harbor" no longer seems so safe.

Soon we will publish the second part of the article, stay tuned!

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