Yahoo! does not have to delete copyright-infringing search results Italian court rules

Out-Law News | 15 Jul 2011 | 12:53 pm | 2 min. read

An Italian court has ruled that search engines there do not need to identify and delete results that link to alleged 'pirate' websites, lawyers for the firm acting for Yahoo! have said.

The Intellectual Property section of the Rome Court overturned an earlier decision which forced Yahoo! Italia to identify and delete any links to illegally streaming or downloadable copies of Iranian film "About Elly", according to a statement from Orsingher, the law firm acting for Yahoo!.

"It's a precedent that will influence the future decisions on these issues," the statement said.

The search engine had been forbidden from "continuing and repeating the infringement... through the search engine's links to websites that contain the film, either in whole or in part, which are different from the film's official website," said Judge Gabriella Muscolo in a lower court's decision.

Her ruling was based on the fact that the distributor had previously asked Yahoo! to remove any links to the websites, but the search engine had not done so.

Under the EU's E-Commerce directive online service providers are exempt from liability for content they provide access to but which was not created by them.

However this protection only exists if the provider removes the illegal content quickly when notified of its existence.

The film's Italian distributor, PFA Films, had never given links to specific websites which should be removed to the search engine.

The appeal judge said that it was PFA, as the holder of the rights, who had to identify which links related to breaches of copyright and request their removal, rather than make a "generic reference to certain types of content," according to blog reports.

As different parties held distribution rights in different territories, it was not up to the judges to distinguish between links which breached copyright and links which did not, it said. A copyright holder must therefore not only prove ownership of its right, but also "the unfairness of individual acts" of making that material available to the public, the blog report said.

The court's guiding principle in the case was "the promotion and protection of the free movement of information society services," it said.

"We are really pleased because the decision goes against the tide of the case law of the same forum and it is the first known decision in Italy specifying in clear terms that the exemption from liability regime applies to providers also in cases of copyright infringement," Marco Consonni and Francesco Spreafico of Orsingher said.

The case is not the first time the liability of search engines has been discussed in the Italian courts.

In March the court in Milan found Google liable for defamation because its 'autocomplete' suggestions paired an accountant's name with defamatory keywords.

The judges in this case decided that the exemption from liability could not apply, as the suggestions were powered by software that the company had itself created.

Last year, three Google executives were given suspended prison sentences by an Italian court for not removing a video from YouTube, its video-sharing website, of Turin school pupils bullying an autistic schoolmate immediately following user complaints.