In its recent decision on a debated case (full text in Italian here), the Court of Appeal of Milan clarified that Yahoo! video-sharing platform (no longer active) shall be considered a passive hosting provider and may benefit of the ISP limited liability regime under the E-Commerce Directive.
The Court overruled the first instance decision and extended the safe harbour provisions also to “evolved” hosting services: adopting advanced automated functionalities for hosting third parties’ contents is not enough to be qualified as an “active” provider. Additionally, ISPs may be held liable exclusively if they do not activate after receiving a detailed take down notice. Finally, the decision excluded the possibility to impose general filtering obligations on ISPs.
The Court stressed the need to adopt a reasonable interpretation of these principles with the aim of preserving areas of freedom on Internet and updating legal definitions to technological developments. As affirmed by the ECJ (see decisions Telekabel, Netlog, Scarlett, etc.), the ISP discipline must seek a fair balance among opposite interests: provision of new online services, copyright protection, and individual fundamental rights (e.g., privacy and freedom of expression). Copyright protection is not an absolute right and its enforcement shall be measured in light of a “proportionality” principle.
Thus, this decision further aligns the Italian case law to the ECJ interpretation. A step forward for the harmonization of the EU national courts’ case-law.
Francesco Banterle
Court of Appeal of Milan, decision No. 29/2015, 7 January 2015, Yahoo! Italia S.r.l. and Yahoo! Inc. v. RTI (Reti Televisive Italiane) S.p.a.
iplens.org 
[…] It is worth noting that in some recent EU case law (see CJEU, C-265/16, V-CAST case) and in the process of approval of the a new EU Copyright Directive in the Digital Single Market (see the draft text approved last September by the European Parliament here and our comments here and here) are emerging signs of evolutions in the categorization of the CSPs, with a distinction between “active” CSPs and “passive” CSPs. This process seems not different from what has already happened in the context of the categorization of hosting service providers, where an higher level of responsibility is requested to those providers which play an “active” role (see our previous posts here, here and here). […]
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