IT LAW | Reading Time 5 min

Publishing of Illegal Content (part II)

Diego Ganeo, 2/15/2021

Let's proceed with the in-depth analysis of the issue relating to the publication of illegal content and take up the aforementioned example of John Doe who, without the authorization of Jerry Doe, shares on a platform managed by an Internet Service Provider a content that discredits honor and reputation of Jerry Doe.

Quite often, ISP programmers and managers have asked me if they incur any kind of responsibility if their users share illegal content within their platforms.

Before answering this question, it is appropriate to explore the "environment" of reference.

Today, the interaction of online users takes place on the so-called web 2.0 platforms; basically, these are environments that allow the user to be both user and producer of contents, which are aggregated in a multitude in a single channel. Furthermore, the user is given the possibility to accurately identify third-party users, using the personal data provided when registering on the platform by them.

In a certain sense, therefore, the web 2.0 platform could be figuratively represented as a balance, which constantly balances between freedom of expression and the sacrifice of individual privacy, understood in a broad sense as the right to exclude third parties from one's sphere. privacy and privacy as well as the right to maintain control over their information. A context, therefore, in which injuries to the legal spheres of others occur more and more easily, from the violation of copyright to the violation of personal rights. Exemplary, in this sense, is to take into consideration the following data: in 2016, 3,789 Facebook users sent reports to the ISP aimed at instituting criminal proceedings. About 58% of these reports prompted Facebook to release certain sensitive data instantly.

Once the reference scenario has been defined, it is now time to address the question in question, namely whether and when the ISP can be held responsible for hosting illegal content on its platform.

In this regard, art. 16, d. lgs. 70/2003, states that "in the provision of an information society service, consisting in the storage of information provided by a recipient of the service, the provider is not responsible for the information stored at the request of a recipient of the service, provided that said lender:

  1. is not actually aware of the fact that the activity or information is unlawful and, as regards compensation actions, is not aware of facts or circumstances that make manifest the unlawfulness of the activity or 'information;
  2. as soon as he becomes aware of such facts, upon communication from the competent authorities, he acts immediately to remove the information or to disable access to it. "
Now, as sadly often happens, the intervention of the legislator has caused great confusion among the interpreters. One wonders, in fact, whether the cases outlined in letters a) and b) must exist at the same time or, instead, whether they are alternatives. In the writer's opinion, however, there is no doubt that the correct reading must be understood in the sense of two alternative hypotheses. Conversely, letter b) would deprive the content of letter a) of meaning: why, in fact, envisage the hypothesis referred to in letter a) if the ISP's obligation to react only arose with the communication of the competent authorities?

Fortunately, the preferred interpretation found comfort in the case law on the merits which correctly provided that the actual knowledge of the unlawfulness of the activity can certainly derive from communication from the competent authority but also, on closer inspection, "from the person who is considered violated in their rights by the activity or information in question" (Court of Catania, 21 April 2011).

Therefore, it appears correct to hold the ISP responsible for the publication of illegal content if, despite having knowledge that the information transmitted on its platform infringes the rights of a third party, whether this report comes from a third party or from the supervisory authority, the ISP does not take action to prevent this violation from continuing.

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