The civil responsibility in tort of service providers
of the society of information in the framework of legal regulations on electronic commerce

The issue of civil responsibility in Internet is particularly complex and current. On this point, one cannot but recall the meaningful words of the European Commission (Communication 16/10/1996 entitled ‘Information of illegal and harmful content on the Internet: what is illegal outside of the Network is also illegal on the Network’.
In fact, one must reject the radical reading –the work of certain North American authors – in favour of the interpretation of Internet as a lawless zone, subject exclusively to the self-disciplinary rules of the Network users.
The above mentioned classification of the offenses in Internet allow us to make a rough distinction between:
a) the offenses committed by subjects who, in various ways, regulate the access to the Network (ISP) and the allocation of domain names, (offenses by Internet);
b) the offenses of users to the detriment of Internet (offenses against Internet);
c) the offenses committed utilizing Internet (offenses by means of the Internet).
The diffusion of the electronic commerce – because of its global nature – requires certainty and uniformity of supranational legal regulations, all the more so with reference to the question of responsibility.
The field of application – as clarified by the EC Directive on electronic commerce and the Legislative Decree 70/2003 of implementation – is not limited to electronic commerce, which is perhaps the most important of the commercial activities online, but not the only one: the scope of application extends, in fact, also to the provision of services related to the information society.
For ‘services of the information society’ – pursuant to the EC Directive N° 34/98 – must be understood:
«any service, normally provided for remuneration, from a distance, electronically and on individual request of a recipient of services, that is, of a person or entity that, for professional or non-professional purposes, uses a service of the information society, also for seeking information or making it accessible».
Excluded from the group of services of the information society and, therefore, from the applicability of the Directive EC 31/2000 and 70/2003 are the services of:
a) telecommunications;
b) radio and television;
c) medical and legal consultation (so-called protected professions) (1) .
The EC Directive in question was implemented, as already said, by the Legislative Decree 70/03 which delineates in Articles 14, 15, 16 and 17 a peculiar system of responsibility – or better, of non-responsibility – for the service providers of the information society.
The system of non-responsibility outlined by the special Directive referred to in the Legislative Decree 70/03, which introduced new and peculiar regulations of exclusion of responsibility for the service providers of the information society, of which category ISP can be attributed, marks the transition from the rules of common law as laid down in Article 2043 of the Civil Code, responsibility based on guilt and deceit, and of Article 2050 and 2051, semi-objective responsibility or compounded responsibility, to responsibility through the fault of omission.
The responsibility of the passive ISP results, therefore, from failure to observe the behaviour that – as a result of an express provision of law – the same is legally obliged to observe in the circumstances in which the event occurs.


The ambit and limits of the responsibility – rectius, non-responsibility – for the services of mere conduit, caching and hosting as outlined by the Articles 14, 15, 16 and 17 of the Legislative Decree 70/03

The issue of the civil responsibility of the ISP must be viewed in the context of the new regulations as outlined by the Articles 14, 15, 16 and 17 of the Legislative Decree 70/2003.
The legislation under review – in addition to establishing the fundamental principle of the absence of the general obligation of monitoring (Art. 17) – governs the responsibility of the service providers for:
- simple transport of information, so-called “mere conduit” (Art.14); - temporary and automatic memorization of information, so-called “caching” (Art. 15);- memorization of information supplied by the recipient of the service, so-called “hosting” (Art. 16).
The choice of exemption of the service providers of the information society must be considered as an exception to the general system of “civil” responsibility of business: consequently, the cases of exemption outlined by the Legislative Decree 70/2003 must be considered strictly determined by the law and subject to the strict interpretation of the law.
Said cases of exemption – irrespective of the different types – converge towards only one condition of exemption: id. est. the total unawareness of the provider of the content of the transmission or, in other words, the total passivity of the operator with respect to the contents placed on the Internet by third parties.
An essential prerequisite on which is based, as we shall see, the subjective case law distinction between:
- passive ISP, beneficiary of the exemption of responsibility herein analyzed; - active ISP, excluded, on the contrary, from this benefit.
Article 14 of the legislation in question – entitled Simple Transport “mere conduit” – with reference to the provision of a service of the information society consisting in transmitting, on a communication network, information supplied by a recipient of the service or in supplying an access to the communication network, establishes that the provider is not responsible for the information transmitted, on condition that the provider of the service:
a) does not originate the transmission;
b) does not select the recipient of the transmission;
c) does not select or modify the information transmitted.The aforementioned activities of transmission and provision of access include the automatic memorization, intermediate and transient of the transmitted information, on condition that this serves only the transmission on the communication network and that its duration does not exceed the reasonable time necessary for this purpose (Article 14.2, cited Legislative Decree).
The temporary automatic memorization of the information – so-called “caching”, governed by Art. 15 of the Legislative Decree 70/03 – establishes, again with reference to the provision of a service of the information society consisting in transmitting on a communication network, information supplied by a recipient of the service, that the provider is not responsible for the intermediate and temporary automatic memorization of such information made for the sole purpose of rendering more effective the subsequent forwarding to other recipients, on their request, on condition that the service provider:
a) does not modify the information;
b) complies with the conditions of access to the information;
c) complies with the regulations of updating the information in a way that is widely recognized and utilized by the sector companies;
d) does not interfere with the lawful use of widely recognized and utilized technology in the sector, to obtain information on the employment of the information (so-called log system),
e) acts promptly in the removal of the information it has memorized or in the deactivation of access as soon as it learns of the fact that the information has been removed from the location where it was originally found on the Network, or that the access to the information has been deactivated, or that a jurisdictional body or administrative authority has ordered the removal or the deactivation of the access.
Finally, with regard to the responsibility for memorization of information requested by the recipient of the service, Article 16 of the Legislative Decree 70/2003 governs the so-called “hosting”, or rather, the atypical contract on the basis of which a subject – the service provider – undertakes, with respect to another, to lease a memory space on his own server and to supply services of various nature and duration connected to it (technical assistance, software development etc.).
It specifically establishes – again with reference to the provision of a service of the information society consisting in the memorization of information supplied by a recipient of the service – that the service provider is not responsible for the memorized information requested by the recipient of the service, on condition that the same (ISP):
a) is not actually aware of the fact that the activity or the information is illegal (in the case of a criminal offense);
b) as far as actions for damages are concerned, is not aware of facts or circumstances which make the illegality of the activity or of the information manifest (in the case of civil offense): the manifest illegality does not require particular legal knowledge;
c) as soon as such facts are learned – upon communication of the competent Authorities – it acts immediately to remove the information or to deactivate the access.
The exclusion of the responsibility of the service provider for hosting is not applied if the recipient of the service acts under the authority or the control of the provider (Art. 16.2, Legislative Decree 70/2003, which evokes the responsibility of the employer for facts concerning employees). The anti-evasive nature of the regulation is quite evident.
In essence, the causes of exclusion of responsibility cannot be speciously invoked by those who control – in fact, or in law - the recipient of the service, recipient without autonomy, who acts following the indications of the service provider.
With reference to the hypotheses of responsibility just described:- Art. 14.3: simple transport of information (so-called mere conduit);- Art. 15.2: temporary and automatic memorization (so-called caching);
-Art. 16.3: memorization on request of the recipient of the service
(so-called hosting), Legislative Decree cited.
The judicial authority – or administrative authority, having the functions of monitoring – can demand, also on an urgent basis – that the provider, in the exercise of activities of services of the information society, impedes or puts and end to the infringements committed.
The new outlined regulations on the subject of ISP responsibility cannot be considered complete without referring to the fundamental Article 17 of the regulations in question, which defines the terms of the absence of the general obligation of monitoring by the providers of the services of the information society.
Said regulations establish, in fact, that in the provision of services of mere transport of information (mere conduit, Art. 14), automatic temporary memorization (caching, Art. 15) and memorization on request of the recipient of the services (hosting, Art. 16), the service provider is not subject to a general obligation of monitoring the information which it transmits or memorizes, nor to a general obligation of actively seeking facts or circumstances that indicate the presence of illegal activities.
The service provider – subject to the articles cited governing the simple transport, the temporary memorization and the memorization on request of the recipient – is obliged:
a)to inform the competent public Authorities, without delay, of presumed illegal activities or information – of which it is aware – regarding the recipient;b) to communicate, without delay, to the competent Authorities upon their request – for the purpose of identifying or preventing illegal activities – information that allows the identification of the recipient of the services with whom it has agreements of memorization of the data (so-called navigation logs data).


The telematic civil responsibility of the passive ISP and the problem of the knowledge of the tort between absence of the ex ante obligation of monitoring and the ex post duties of removal

The service provider of the information society – in particular, the ISP – is civilly responsible for the content of such services – under Article 17, para 3 of the Legislative Decree 70/03 – in the case in which:
- it does not act promptly to impede access to said content, if and when required to do so by the judicial or administrative authorities having a supervisory role;
- i.e. if, having knowledge of the illegal or harmful nature of the content of a service which has been assured access, it does not undertake to inform the competent Authorities.
The passive ISP is, therefore, civilly responsible if it does not promptly remove an illegal content upon the request of the judicial or administrative Authorities having a supervisory role, or if it fails to fulfill the obligation of informing these aforementioned Authorities in the case in which it learns of the illegal or harmful nature of the content of a service which has been assured access.
The aforementioned principles, although ambiguous from certain aspects, seem, however, inspired, at least in principle, to exclude the civil responsibility of the passive ISP, id est, not interfering with the content of the user recipient of the service.
The ambiguity of certain regulations arises from the need to balance the protection of conflicting interests: on the one side to safeguard the independence of the Internet network, the freedom of expression and the confidentially of information; on the other side, not to give up control in matters concerning the contents and the subjects that could be harmed by telematic offenses.
An example of the cited regulatory ambiguity is seen in reference to the principle of the absence of a general obligation of monitoring, which turns out to be more limited than it appears at first reading.
One recalls the limitations under the second paragraph of the same Art. 17 of the Legislative Decree 70/2003, according to which the service providers of the information society are obliged to respect:
-inform the public authorities, without delay, of presumed illegal activities or information of the recipients of their services;
- communicate to the competent Authorities, upon their request, information that allows the identification of the recipients of their service with whom they have memorization agreements of the data.
One also recalls the conditions for the exemption from responsibility under Art. 16, regulating the case of the so-called hosting.
It establishes, in fact, that the provider is not responsible for the information memorized upon request of a recipient of the service, on condition that:
— the service provider does not have actual knowledge of the fact that the activity or the information is illegal and (personal and direct knowledge of the criminal offense);
— with regard to claims for damages, is not aware of facts or circumstances that make the illegality of the activity obvious (also indirect knowledge, but evidential and circumstantial, of the civil offense of obvious illegality);
— as soon as it becomes aware of such facts, acts immediately – on communication of the competent Authority – to remove the information or deactivate access.
One observes – in a critical sense – the inappropriateness of delegating to the ISP telematic service provider the judgment of the seriousness relative to the unlawfulness – or not – of the act.
From the cited regulations, a shift in the monitoring obligation clearly emerges – from the phase prior to releasing the data onto the Network to the phase following – the monitoring obligation is subsequent, albeit limited, to the illegal acts of which the provider has passively become aware, without obligation of actively seeking.
The principle of the absence of the monitoring obligation is, therefore, strongly limited because – inapplicable – just as soon as the service provider comes ”to learn” or becomes “aware” of the illegal act: the failure of reporting to the judicial Authorities consequently involves the automatic loss of the benefit of the exclusion from civil responsibility.
We can, therefore, say that it is more correct – instead of referring tout court to a general principle of the absence of the monitoring obligation – to refer to the principle of the absence of obligation of preventive monitoring, not being excluded, in fact, the obligation of passive monitoring of the illegal acts within the recommended limits shown, and specifically:
- following knowledge of the illegal act;
- with reference to the specific illegal acts of the service recipient.
But when can one correctly state to be ‘aware’ of an illegal act under the regulations in question? When one hears that a certain site has illegal contents? When one reads it in the newspapers? When does one have direct personal cognisance? When is it actual and personal knowledge, or circumstantial and indirect knowledge, or judicial or administrative knowledge?
On the criticism of the term “being aware” – still too much ambiguity, notwithstanding the exclusion of the obligation of active monitoring, except in the cases of specific requests made by AGO or AGCOM – of an illegal act, only a passing reference can be made as a point of reflection, since, at this stage, it is not possible to offer definitive interpretative solutions.
However, the most recent case law seems oriented towards the consideration that what is appropriate for reporting the knowledge of unlawful conduct is simply the sending of the formal warning notice of the party concerned, therefore, also in absence of a specific judicial or administrative order.
An interpretation, which could be fraught with allegations of liability against the ISP, in the case where they act on the basis of a formal warning notice which subsequently proves to be unfounded.
The issue of the procedure of the removal of illegal contents is, moreover, a subject of considerable innovation within the regulatory administration of AGCOM with reference to the protection of the rights of intellectual property in electronic communications: a subject which can only be touched on here, given the limited space of the present study.
An adequate protection of the rights of intellectual property and the promotion of a legal offer of such contents – observes AGCOM – is “decisive for the safeguard and development of creativity: and this, not only in the interests of the authors (private), but also in the interests of the consumers/users (public)”. (2) .
Furthermore, AGCOM has decided to exclude from the forthcoming regulations “the applications with which the users can directly exchange contents with other users through electronic communication networks. In the performance of the activities provided for by the Regulation scheme, the Authority operates in compliance with the rights and the freedom of thought, freedom of the press, of commentary, criticism and discussion, inspired by the fundamental principles laid down in the Unified Code of the audiovisual and radio media services and to the exceptions provided by the Law on copyright” (3) .
However, also the aforementioned AGCOM regulations, in absence of expressed primary norm in this sense, leaves unsolved the problem of the non-responsibility of the service provider in the case of the removal of a digital content as a consequence of a request which later proves to be unfounded.
On the subject of ‘actual knowledge’, the recent provision is reported – on appeal to the previous precautionary measure – of the Court of Rome, 14th July 2011, Section Specialized in Industrial and Intellectual Property, which expressed itself exclusively in favour of an analytical report, a merely general report not being sufficient to integrate the details of the actual knowledge with the consequent loss of the benefit of the non-responsibility referred to in the Legislative Decree 70/03.
The concept of actual knowledge should have been modelled on the basis of that elaborated by the Digital Millennium Copyright Act (DMCA), of the United States, which considers necessary and sufficient for this purpose, a formal communication on the part of the subject presumed damaged by the information to be removed from the Internet (4) .
Together with the extrajudicial formal warning notice of the subject allegedly damaged by the removal of the information (essential for the purposes of ISP knowledge of the illegal act), the DCMA included also the criterion of “exclusion of responsibility” for ISP if and when the latter complies with the obligation contained in the formal warning: this criterion, however, has, regrettably, not been enforced by either EU or Italian regulations.
In essence, if the ISP – in fulfillment of the obligations of the Legislative Decree 70/03 – removes the information considered to be unlawful, upon the simple request of the interested party, the exclusive responsibility of the consequences of such act – in the case in which the unlawfulness is subsequently found to be groundless – would be – unlike the Italian regulations in force – borne solely by the incautious individual who requested the removal, without any risk to the diligent ISP.
It is necessary to stress once again – recalling what has already been noted above in §1 – that the normative framework outlined by the Legislative Decree 70/2003 on the subject of the responsibility of service providers of the information society marks a reverse trend with respect to the evolution of civil responsibility in the overall context of civil responsibility in business.
A context which sees the increase of the responsibilities of the entrepreneur – as a subject who is aware of more information and, therefore, is more able to avoid damage – to the limits of the objectification of the business risk.
The principle of objectification of the business risk is supported by the economic analysis of Law, as a legal principle capable of discarding the inefficient market actors – because forced to pay high compensation for damages incurred – and, thus, making the market competitive.
In light of what has been said, one cannot but detect a certain contrast – not to say antinomy – existing in point of discipline of the regime of responsibility, between the EC Directive 31/2000 and the EC Directive 95/46 on the subject of personal data and consequently between Article 15 of the Legislative Decree 196/03 and the Articles 14, 15, 16 and 17 of the legislative Decree 70/2003.
In fact, we must bear in mind that the Legislative Decree 70/2003 – as well as the Directive on electronic commerce – expressly excludes the discipline of personal data from the area of applicability.
But what is the contrast to which we refer? In essence, if, on the one side the Legislative Decree 70/2003, in matters of electronic commerce, tends to limit the responsibility of the service provider of the information society, on the other side, the Legislative Decree 196/03, in matters of personal data, tends to objectify the responsibility of the owner of the management which, in the virtual reality of Internet, is often the service provider itself of the information society.


Civil responsibility for unlawful act of the search engine as a consequence of illegal “links” in violation of the rights of intellectual property

In the case of PFA Films vs. Yahoo! – originated from the precautionary appeal by FPA Films, the exclusive licensee company of the rights of financial exploitation of the film ‘About Elly’ – the Court of Rome 20th March 2001, Section Specialized in Industrial and Intellectual Property, which here is published: orders the Yahoo! search engine, the removal of its servers of access to the audiovisual files of the film not authorized and the injunction of the continuation of the violations.
The Section Specialized in Industrial and Intellectual Property of the Court of Rome does not consider applicable the exemption from responsibility of the management of the search engine, provided for by the Legislative Decree 70/2003, on the basis of the following – shared – argumentation: the search engine, while not performing an active role in the selection and positioning phase of the information in general and not being, normally, aware of the contents of the source sites to which the link is made, nor exercising a preventive check on same, however, not required by law, nevertheless, once becoming aware of the unlawful content of specific sites, unequivocally identified by URL (Uniform Resource Locator), is in a position to exercise a subsequent check and to impede indexing and connection.
The Court of Rome decided, in fact, that the special regulation (Articles 14, 15, 16 and 17 of the Legislative Decree 70/2003) of exemption from responsibility – based on the presumption of default by the service provider of the information society of a duty of monitoring of the contents placed on Internet – does not apply in this case because of the awareness of the illegality of the link.
Furthermore, it is also noted that this special responsibility – rectius, exemption from responsibility – constitutes significant departure from the general principle of responsibility for unlawful acts and to the tendency to objectify the emerging business risk – ex multis – from the discipline of the responsibility of the producers (Article 114, Legislative Decree 206/2005), of the responsibility for illegal treatment of personal data (Article 15, Legislative Decree 196/03) and of the responsibility of the service providers of audiovisual media (Article 2.1, letter b) Legislative Decree 177/2005).
Yahoo! was, in fact, formally notified of the illegality of the hypertext link to a pirate site by a prior extrajudicial formal warning notice of the plaintiff company. The omitted activation of the manager of the search engine for the removal of the unlawful digital content consequently implies – in the opinion of the Court of Rome – the responsibility of same for infringement of intellectual property rights.
In fact, the awareness of the offence excludes – again, according to the Roman decision – the applicability of the special regime of exemption of responsibility: in this case, Yahoo! must, therefore, consider itself legitimate recipient of the preventive injunction provided for under Article 156 Copyright Law, as intermediary whose telematic services were used for the violation of the intellectual property rights of third persons.
On the basis of the aforementioned regulation, as known, to the outcome of the changes introduced by the Legislative Decree 140/2006 implementation of the Enforcement Directive 2004/48 – which extended the injunction to the intermediaries of the information society, subject to the provisions in the Legislative Decree 9th April 2003 N° 70 – whoever has reason to fear the violation of a right of economic utilization belonging to him in virtue of this law or intends to impede the continuation or the repetition of an already incurred violation by the author of the violation or of an intermediary whose services are used for such violation, may sue to obtain that his right is verified and that the continuation of the violation is prohibited. Pronouncing the injunction, the Judge can fix a due amount for each violation or subsequent infringement or for delay in the execution of the provision.
In the ordinance of acceptance of the complaint presented by Yahoo!, the Court of Rome 14th July 2011, Section Specialized in Industrial and Intellectual Property, revokes the injunction of the removal of Yahoo! servers of access to the audiovisual files of the film not authorized and the injunction of the continuation of the violations, due to generality of the complaint and violation of the burden of the proof.
The Court observes that PFA Films, in the pre-trial phase reported the violation by Yahoo! Italia of its exploitation rights of the cinematographic work “About Elly” due to the conduct consisting in facilitating the violation by making the film available to the public and the indexing of the illegal contents.
PFA Films complains, in particular, the failure of action by the search engine also after formal judicial notice.
Nevertheless, the Court of complaint preliminarily observes that the search engine – analogously to the ISP, inasmuch as comparable to them, being a mere supplier of mere connectivity – does not take an active role in the selection and positioning phase of the information in general, and not being aware of the contents of the source sites to which the link is made:
benefits from the regime of non-responsibility outlined by Articles 14, 15, 16 and 17 of the Legislative Decree 70/03 intended to exclude an objective non-typified responsibility or, at least, a sharing of theISP in the illegal contents released by third parties;
- is not subject to a general obligation of monitoring the information, under Article 17 of the Legislative Decree 70/2003.
Furthermore, it observes that «the hypothesis of the possible contrast between the discipline of the Legislative Decree 9/4/2003 N° 70 and of that subsequently introduced by the Directive 2004/48/EC of the 29/4/2004 (so-called Enforcement Directive) on the respect of intellectual property rights (implemented in Italy with the Legislative Decree 16/3/2006 N° 140) is expressly resolved by the Article 2, N° 3, letter a) of the same Directive 2004/48/EC, which leaves the Directive 2003/31/EC unaffected» and again underlines that the Enforcement Directive «in the awareness of the preoccupations of the industry of telecommunications and access providers, has considered it necessary to clarify that in the balancing of the conflicting interests, the respect of the needs of promotion and protection of the free circulation of the services of the information society must be assured, among which the electronic commerce (see Article 1, entitled “Finality” of the Legislative Decree 9/4/2003 N° 70)».
The Court of Rome, in its judgment of the complaint, is of particular interest, not so much in terms of the identification of the active ISP (5) On the reconstruction of the subjective figure of the active ISP, the following are reported in jurisprudence: Court of Catania 29th June 2004. Sentence in the Review, Dir. Informaz e Informatica 2004, 466; Court of Milan, 2nd March 2009, ord., case RTI vs. RCS) – a theme that is only hinted at in order to exclude the applicability to the search engine, likened tout court to the mere supplier of connectivity, but without adequate investigation into the motivation - but rather in terms of the controversial issue of the actual “awareness” of the illegal act.
ISP, in fact, loses the non-responsibility benefit provided for under the Legislative Decree 70/03 (with the consequent obligation of subsequent monitoring for the purposes of removing the indexing and the connection to illegal content) only if it is formally informed by the holder of the intellectual property rights of the illegal content of specific sites.
In this case, the formal warning notice and the subsequent judicial action were founded on a generic injunction of all the links to all the videos of the film “About Elly” present on the search engine.
The decision in question, instead – to obtain an ‘actual awareness’ of the search engine, more in general, of the ISP – considers an analytical report necessary, which allows it to identify:
unequivocally, the URL (Uniform Resource Locator) of the links to sites of illegal content;
the violated right, case by case;
the title proving such right, furnishing adequate probative documentation;
and specify the extent of the violation, in whole or in part.«Such necessity» – observes the Court of Rome of the 14/7/2011 -- «derives, in the first place, from the respect of the burden of allegation (…); in the second place, the precautionary application of the discipline which under Articles 14, 15 and 16 of the Legislative Decree 70/03 postulates the judicial verification of the ‘violations committed’ for which the injunction is asked, and it is evident that no judicial verification is possible failing such allegations»; and again, shows that «it is the precise burden of the applicant PFA Films s.r.l. to indicate the violations committed and therefore, to provide the evidence in the case, also in consideration of the fact that the injunction invoked is intended to produce effects on a plurality (at the undefined state) of subjects remaining completely foreign to the present precautionary proceeding, which, therefore, in the circumstances, imposes a rigorous and thorough examination of the assumptions of the injunction (…) PFA Films s.r.l. holds only some of the exploitation rights of the cinematographic work “About Elly” and only for some territories, with the consequence that such rights may be legitimately exercised by third parties, also through the telematic networks and that – therefore – in the indiscriminate multitude of the possible web contents reproducing images of the film “About Elly”, it is necessary to distinguish those coming from subjects who are entitled and from those who are not».
The omitted analytical identification, on the part of the holder of the rights of intellectual property, of the URL identifiers of the respective linked sites; of the circumstantial indication, case by case of the violated right; of the title proving such violation and of the entity of the violation reported – in whole or in part – does not include the details of the actual awareness post factum, the ISP not being, in fact, required to make such investigations of its own to make up for lack of information on the request of the holder who claims to have suffered a violation of his rights of intellectual property. Furthermore, precisely because it is not required to make its own investigations in order to comply with the notice – the search engine recipient of the generic report cannot be considered legitimate recipient of the injunction provided for under Article 156 Copyright Law.
Basically, it confirms the Roman decision in the complaint, which considers a generic report unsuitable –for the purposes of the actual awareness provided by the Legislative Decree 70/03 – admitting exclusively an analytical report: a generic report, in fact, implies, from the extrajudicial viewpoint, the impracticability of the formal warning notice on the part of the ISP due to the lack of essential information elements and under the terms of the case proceedings, the violation of the principle of the burden of the proof with consequent revocation of the injunction granted.
As we have been able to see in these pages, the complex and controversial subject of the responsibility of the ISP and of the new subjects of the market – such as search engines, aggregators of contents and social network – is in constant evolution and is still far from having found a complete and definitive resolution.


The author advises

La posizione dell'intermediario tra l'estraneità ai contenuti trasmessi e l'effettiva conoscenza dell'illecito: un'analisi comparata tra Spagna, Francia e regolamentazione comunitaria Author: P.Sammarco in Diritto dell'Informazione e dell'Informatica (3-2011)