IT LAW | Reading Time 4 min

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

Diego Ganeo, 2/24/2022

The R.T.I. S.p.A. v Qlipso Inc. and Dailymotion S.A., decided by the Court of Rome in 2021, have the merit of further consolidating the interpretation of the concept of active hosting provider. This notion, as opposed to that of passive hosting provider (see part I), has indeed already had the opportunity to crystallize in Italian jurisprudence with the R.T.I. S.p.A. v VIMEO LLC, decided, again by the Court of Rome, in 2019.

On this occasion, R.T.I. complained of the unauthorized publication, on the portal, of hundreds of contents extracted from transmissions and channels owned by R.T.I. On the other hand, VIMEO objected not to be aware of such abusive publications on its platform, not being able to carry out any preventive control of the videos uploaded by its users and to be required to take action to remove only one receipt of adequate notification. In this sense, VIMEO declared to assume a role of passive hosting provider.

Having represented the positions of the actors in the case in question, it is now appropriate to specify that, on the basis of the Italian majority jurisprudential orientation, the hosting provider becomes active if it intervenes in the organization and selection of the material transmitted in a way that is not completely passive and neutral with respect to the '' organization of the management of the contents entered by the users, from which it also draws financial support due to the advertising exploitation connected to the organized presentation of such contents.

That said, the Court of Rome noted that:

  1. the videos uploaded to Vimeo are precisely cataloged, indexed and correlated with each other by Vimeo itself;
  2. Vimeo provides a search engine that facilitates the finding of the video of interest, also modulating the search through the use of specific tags such as "newst", "oldest", "most played" etc .;
  3. the videos are associated with advertising content, related to the content of the videos displayed, which refer to pages of third parties, generated through the AdSense service.

On the basis of these premises, the Court of Rome, with sentence no. 693/2019, concluded in the sense that "VIMEO has not limited itself to activating the technical process that allows access to the communication platform on which the information made available by third parties is transmitted or temporarily stored, for the sole purpose of making it more efficient the transmission, but carried out a complex and sophisticated organization of exploitation of the contents placed on the net that are selected, addressed, correlated, associated with others, coming to provide the user with an audiovisual product of high quality and complexity with its own precise and specific autonomy ".

It follows that, even if VIMEO makes use of software to index, organize, catalog, associate the videos uploaded by users with others or advertising, "it nevertheless plays an active role of interference in the stored contents, such as to allow it to know o control and make an important contribution to the editing of the stored material ", thus assuming the role of active hosting provider.

... the last part is following shortly, don't miss it!