IT LAW | Reading Time 6 min

Publishing of Illegal Content (part III)

Diego Ganeo, 3/1/2021

The duty of the Internet Service Provider to remove illegal content: in-depth analysis.

During the last two interventions, I have begun to examine the widespread case of the publication of illegal content on online platforms managed by ISPs and their consequent liability.

In particular, it has been seen that, pursuant to art. 16, d. lgs. 70/2003, the ISP is responsible for the simple fact of hosting illicit content on the platform it manages if, knowing that the information transmitted on its platform infringes the rights of a third party, whether this report comes from a third party by the supervisory authority, the ISP does not take action to remove the illegal content.

The norm, which at first glance would seem to resolve any interpretative perplexity, however, hides a practical obstacle that is not insignificant. In fact, consider the fact that the ISP is aware of the illegality of the content. Specifically, this hypothesis is codified by the law in question with the following expression: "(the ISP) is not actually aware of the fact that the activity or information is illegal and, as regards compensation actions, is not aware of facts or circumstances that make manifest the illegality of the activity or information".

At this point, two questions arise spontaneously. First of all, it is natural to ask whether the ISP is required to act in some way in order to become aware of the presence of illegal content on the platform it manages. Secondly, it is logical to ask what illegal content is and how an ISP, who is not an interpreter of the law, can define content as illegal.

The first question is a prompt solution. The art. 17, d. lgs. 70/2003, in fact, specifies that "the service provider is not subject to a general obligation to monitor the information he transmits or stores, nor to a general obligation to actively seek facts or circumstances that indicate the presence of illegal activities". This statement is crystal clear. There is no room for any interpretative doubt: the ISP is required to act and take measures only upon notification. Regarding the origin of the report, it is correct to state that this can come from anyone, both from the person injured by the illegal content and from third parties who have had knowledge of the illegal content.

On the other hand, the second question, as anticipated above, opens up a rather difficult issue. According to what criteria is the ISP in fact able to define an illegal content, once the report has been received? The aforementioned rule alludes to a twofold circumstance: being effectively aware of the fact that the activity or information is illegal, or, as regards compensation actions, being aware of facts or circumstances that make the illegitimacy of the activity or information.

Consider the first hypothesis: the ISP is required to remove the content as it has an "effective" knowledge of its illegality. The use of the term "actually" seems to clarify that the ISP must not assume the illegality of the content but must have concrete, real proof. Reasoning in such terms, the case described here could be the following: Jerry Doe's mother reports to the ISP that John Doe has published illegal content against Jerry Doe. When reporting, the mother attaches a judicial sentence against John Doe for mobbing against Jerry Doe. In this hypothesis, the ISP has effective evidence that the content published by John Doe integrates upon closer inspection an overall conduct already defined as illegal by the judiciary. Therefore, the ISP removes John Doe's content, deeming it correctly illegal by virtue of an assessment already carried out by the competent authority.

Let us now consider the second, more delicate and controversial hypothesis: in the presence of compensation actions, the ISP is required to remove the reported content if the unlawfulness is manifest. It is evident that the character of "manifest illegality" introduces a subjective parameter, the interpretation of which, in the opinion of the writer, is beyond the competence of an ISP. One wonders, therefore, how this last duty of removal should be read. Defamation, violation of privacy, stalking are cases that are integrated by the existence of certain conditions. Assumptions that only an interpreter of the law is able to correctly identify (and often, moreover, such identification is not at all easy). Certainly, every ISP cannot be expected to have an internal lawyer to ask whether or not a content is "manifestly illegal". On the other hand, it is considered correct to interpret this provision as meaning that the ISP must assess the nature of the facts according to the normal diligence of the father of the family. In this context, it will be easy, for example, to define as manifestly illicit an injury which, by its mere literal content, already in itself leaves little room for alternative interpretations. Otherwise, it will be much more complex to understand whether the reporting of an alleged violation of privacy constitutes a manifestly illegal fact.

When in doubt, the SilentWave team, combining a consolidated experience in legal and IT matters, offers its expertise to Internet Service Providers to support them in the correct interpretation of the alleged illegal content reported. Contact us!

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