Facebook found liable for hosting unlicensed content

Facebook has suffered an important and globally significant defeat at the Tribunale Roma in Italy. Last week the court held Facebook liable for hosting links to infringing content following a complaint by Italian broadcaster Reti Televisive Italiane ("RTI") and singer Ponzone Valentina.

RTI and Ponzone sued Facebook over a profile that linked to performances by Ponzone on a TV show produced by RTI. The claimants had warned Facebook about the infringing content in 2010 and repeatedly thereafter, but the profile was not disabled until January 2012.

Facebook defended itself in two ways: firstly, that the Tribunale Roma had no jurisdiction, and secondly, that it was protected by the safe harbour provisions of the Italian Legislative Decree of 2003. The court disagreed though, and cited the Brussels Recast regulations when explaining that it had jurisdiction as a competent court in the jurisdiction where the harm occurred. This was an interesting application of this rule, as the court held that this meant the location where the infringed rights vest, rather than where the infringing content was uploaded or hosted.

The court went on to find that as Facebook had known about the infringing content for some time, it could not rely on the safe harbour provisions that are only there to protect unknowing hosts. When informed of infringing content, hosts are expected to act expeditiously to disable it.

It is thought to be the first time a company has been found liable for hosting links to infringing content (as opposed to infringing content itself) under Italian law. That law, however, is soon due to change once the European Copyright Directive is implemented.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.