Don’t Say the Word ‘Streaming’… A Right Holder Might Hear You

//Marco Bellezza, Senior Associate Portolano Cavallo Studio Legale and AnOx 2013 Participant, examines a recent Court of Rome decision that issued an injunction based on a reference to websites providing streaming services not authorized by the relevant rights holders.

A recent decision issued by the Court of Rome has refueled the ongoing debate in Italy about the relationship between intellectual property rights (IPRs) on the Internet and guaranteeing the fundamental rights of citizens.  The Court of Rome authorized an injunction founded on a mere reference to websites providing streaming services not authorized by the relevant rights holders. This decision follows the July 25th new draft regulation on the protection of online copyright by the Italian Communication Authority (AGCOM). This is an important precedent in Italian and European case-law on the matter as it is the first time a court has granted an interim injunction on the basis of an indirect infringement of the copyright on audiovisual products.

The Court of Rome’s decision was based on an interim injunction request submitted by RTI, a major Italian private broadcaster, along with Lega Calcio, the Italian Football Federation. RTI is licensed by Lega Calcio to broadcast football events. RTI and Lega Calcio’s submission ordered the online journal IlPost to not provide names of and links to websites giving access to videos of Campionato, Champions League and Europa League football events owned by RTI.

IlPost published articles that informed users where football event were accessible via streaming services not licensed by Lega Calcio. On articles that provided information about streaming services, IlPost added a sentence stating, “often the sources which broadcast the football events haven’t legally acquired the right to do it.” Following a cease and desist letter from RTI, IlPost amended this sentence to read, “it is not possible to verify whether the sources which broadcast the football events have legally acquired the right to do it.” The online journal also linked readers to an article centered on legal issues surrounding streaming services. This was not satisfactory to RTI and Lega Calcio, thus bringing the case to court. According to the judge proceeding over the case, IlPost’s mention of streaming sites, “[seemed] able to offer a valuable contribute to the infringements of the claimants’ rights by third parties.”

Great attention was paid to continuous references within IlPost to articles which reported the names of infringing websites, which the judge considered a way to enable users to easily identify and access infringing websites, not just a legitimate exercise of the freedom of information on the Internet. The managing director of IlPost was ordered to: 1) not provide information of names of and ways to reach websites that directly or indirectly allow access to audiovisual products owned by RTI related to football events, 2) comply with the order within 20 days, 3) pay a penalty of 10,000 EUR for any future infringement and 5,000 EUR for any day of delay in complying with the order, 4) publicize the ruling on the homepage of IlPost and two national newspapers, and 5) pay the legal expenses and fees of the claimants.

This decision presents concerns regarding its conformity with both the Italian and European legal framework from a technical point of view and with the freedom of information principle as recognized by the Italian Constitution and the Charter of Fundamental Right of the European Union.

From a technical standpoint it is worth noting that Italian Copyright law does not recognize the ‘indirect infringement’ of copyright or other IPRs as an autonomous infringement. The reference should thus be made to the general rules on tort liability as set forth by the Italian Civil Code.  According to these rules, negligent or willful behavior to be punishable shall be a direct and immediate cause of the damages borne by the injured person.  Even in cases of ‘contributory infringement,’ it is necessary to demonstrate that there is a casual nexus between the behavior and the damages occurred, if any.

It appears that the court’s decision lacks this point.  The courts do not provide an explanation on how the mere reference to the existence of unauthorized streaming services within an article might contribute to the infringements carried out by service users. Users would have to actively search for these streaming services on a search engine or browser to find the appropriate links to view copyrighted material.

More broadly, the court’s decision raises serious concerns about their conformity with the applicable EU legislative framework. As recalled several times by the European Court of Justice, this legislative framework is aimed at achieving a fair balance between all the interests and rights involved. Are the courts sure that such balance is achieved by preventing an online journal from providing information on services available on the Internet, even if they are unlawful? Are the courts sure that such measures are able to effectively protect IPRs without excessively sacrifice the rights of the other subjects involved? Those questions remain open and will hopefully be addressed by the European Court of Human Rights which can become involved on the case since the national proceedings are over.

//Marco Bellezza

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