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ISPs on alert following Italian decision to prosecute three Google executives 3 Mar 2010

Internet Service Providers (“ISPs”) and other hosting platforms or internet intermediaries may wish to take note of a decision which was handed down last Wednesday in an Italian court. Three Google executives were found personally liable for allowing the posting of a video clip on Google’s video service, which showed an autistic boy being bullied. The decision may have significant implications on the need for ISPs to review their ‘notice and take-down’ procedures, having been made aware of unsuitable or illegal content on their website.

Under EU law, ISPs are able to benefit from the ‘hosting’ exemption (as set out in the E-Commerce Directive), where defamatory or illegal content is posted on their site without their actual knowledge, or where, having been made aware of such content, they act ‘expeditiously’ to remove it. In practice, this often relates to defamatory content.

In the recent case of Metropolitan International Schools Limited v Designtechnica Corp (also involving Google), Google was able to benefit from the hosting exemption. It was acknowledged that an ISP may not always be able to react instantaneously to a notification of defamatory content; “it may well be that [Google’s] “notice and take-down” procedure has not operated as readily as [MIS] would wish”, however in this particular case, this was not sufficient to prevent Google from benefiting from the exemption.

In the Italian case, Google argued that it removed the video immediately after being notified by the Italian authorities of its existence and, therefore, liability should be avoided. However, crucially, by the time of the notification, the video had remained on Google’s site for two months, even though several web users had posted comments asking for it to be removed. It appears that these notifications were the determining factor in the case.

Although the decision is being appealed, and is not binding on UK courts, the decision has significant implications in terms of ISP liability and the requirements under the hosting exemption, and will no doubt be of concern to ISPs and other ‘hosting platforms’ which do not create their own content. The decision may affect the way in which such ISPs deal with the efficiency of their notification and take-down policies.

This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, please go to www.law-now.com

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