Hosting Provider: the Court of Rome clarifies the area of responsibility of the passive hosting

The Court of Rome, with decision no. 5700/2023 of 7 April 2023, ruled on the matter of the hosting provider responsibility for copyright infringements carried out by users of the platform.

The case

The case submitted to the Court of Rome concerned the abusive diffusion, on a video sharing platform, of a high quantity of audiovisual content exclusively owned by Reti Televisive S.p.A. (RTI).

At first, the tv broadcaster had notified a cease-and-desist letter to the hosting provider, pointing out that many videos taken from several RTI tv programs were published on the platform and providing, by way of example, four URL identifiers of such videos.

Since the hosting provider did not remove all materials, RTI acted against the provider asking for the ascertainment of the responsibility of the hosting provider for allowing the abusive provision to the public of materials and for not promptly removing the mentioned material in their entirety following the letter received.

Recalling the principles expressed by the EU Court of Justice

The court of Rome considers that this controversy should be evaluated in light of the principles expressed on 22 June 2021 by the EU Court of Justice (joined cases C-682/18 and C-683/18), which redefined with binding exclusivity the boundaries of the hosting provider responsibility and the responsibility exceptions.

The decision stated that the hosting provider cannot be considered responsible for the infringements perpetrated by the users and connected to the sharing of protected contents on its own platform, if it does not carry out an active role (that allows it a knowledge or a control over the content uploaded on the platform) and on the condition that it takes immediate action to remove the content at the moment it becomes aware of the illicit committed by the users.

Therefore, the EU Court decided that, to ascertain if the hosting provider could be exonerated by the responsibility, it needed to examine if the role carried out by the provider is neutral (that is merely technical, automatic and passive) or if, on the contrary, said provider performs an active role, which gives it knowledge and control over the contents.

Moreover, to configure a responsibility of the hosting provider, it is necessary that the latter is actually aware of the fact that the activity or information is illicit. That means that “the notice relating to the illicit sharing of a protected content must contain elements sufficient to allow the provider of such platform to ascertain, without a thorough juridical exam, of the illicit character of such communication and of the compatibility of a possible removal of such content with the freedom of expression”.

The decision of the Court of Rome

In light of the principles expressed with the decision of the EU Court of Justice, the Court of Rome excluded that the hosting provider was responsible of the illicit committed against RTI.

First of all, the Court ascertained that the role actually carried out by the provider of the platform was neutral and that, therefore, there was not a preventive control over the videos uploaded by the users or any other form of participation to the illicit committed by the users.

Moreover, the Court considered that the hosting provider could not have any responsibility not even for not having promptly removed all content infringing the rights of RTI.

As a matter of fact, in its cease-and-desist letter, the broadcaster had reported only four random URLs of the contested materials, while in its defensive writings it documented precisely the presence of 401 uploaded videos without authorization. Therefore, since on the platform of the defendant there are over 715 million videos uploaded, the Court concluded that it would have been impossible to find out the 401 videos of RTI without the precise indication of the URL (which, in addition, the actor had).


Ilaria Feriti