The liability of Internet hosting providers for content published by third parties: the Wikipedia case

Judgment No. 1065 of 19 February 2018 of the Court of Appeals of Rome deserves special mention for being one of the few judgements dealing with the topic of Internet hosting provider liability for online publication of news and information that is defamatory as being detrimental to honour and reputation.

The said ruling arises from a lawsuit brought pursuant to Article 702 bis of the Italian Code of Civil Procedure by Mr. Cesare Previti against the Wikimedia Foundation, in its capacity as administrator of the website Wikipedia, to ascertain liability on the part of the defendant company for having published, in the section dedicated to the biography of the Italian politician and plaintiff, information allegedly prejudicial to his honour and reputation.

At the first-instance stage, the Civil Court of Rome ruled out that the Wikimedia Foundation could be held liable for information published on the Wikipedia website, as the service provided by the company should be classified as web hosting, which involves no obligation on its part to preventively verify the validity and/or lawfulness of information uploaded by users.

In the course of appeal proceedings, the Court of Appeals of Rome reiterated that, based on the appellant’s evidence, it must be confirmed that Wikimedia has a role as a mere hosting provider, i.e. a provider of an information society service consisting only of the “storage of information provided by a service recipient”, based on the definition in Directive 2000/31/EC and the relevant domestic implementing law (Legislative Decree No. 70/2003), which, albeit not applicable to the case at hand, constitutes the reference legal framework.

Furthermore, the decision at issue excludes that the activity of a hosting provider may be classified as a dangerous activity under Article 2050 of the Italian Civil Code, also taking into account the general disclaimer appearing on the encyclopaedia’s home page, where users are warned that they are accessing to an open-content online encyclopaedia, with the consequence that no guarantee can be made as to the validity of the information uploaded by users. According to the Court, such disclaimer should indeed be deemed as a measure capable of excluding the dangerousness under Article 2050 of Italian Civil Code for the purposes of the liability exemption in favour of the person carrying out the dangerous activity.

In the light of the reconstruction of the Court of Appeals of Rome, having regard to Articles 16 and 17 of the Legislative Decree No. 70/2003, Internet hosting provider’s liability should be deemed to arise only where a provider became aware of the illegality of information and failed to take action to prevent further dissemination. This can be said since no duty of preventive control or to provide guarantee can be considered to exist, lacking any provision for the provider’s objective liability.

The judgment then explains that, in the case at hand, the person concerned failed to take action in order to have the allegedly defamatory information amended and/or removed. This, though only with a timely and accurate claim, could have led Wikimedia to put in place the internal procedure for removal of the statements considered harmful.

Finally, the Court dwelt on examining the actual defamatory nature of the information published in the online encyclopaedia, coming to the conclusion that such information cannot be held harmful to the honour and reputation of the appellant. In particular, the Court noted that the statements published on the Wikipedia website were based on numerous sources, including final judgements, all mentioned in the website. By contrast, Mr. Previti’s allegations were completely generic and based exclusively on a different version of the facts put forward by the appellant.

Therefore, taking into account that the subjective element of defamation (intentional misconduct) cannot be found in the case at issue, any concurrent liability of Wikimedia with the material authors of the publication pursuant to Articles 2043 and 2055 of the Italian Civil Code must be ruled out.

Having regard to the provisions of Articles 16 and 17 of Legislative Decree No. 70/2003, the Court addressed the subject – which has never explicitly been dealt with before by courts – of hosting provider liability for damage to reputation on the web, excluding the existence of a duty on the part of hosting providers to implement preventive control and monitoring over merely-stored information and news published by web users.

This article is for information purposes only and is not intended as a professional opinion. 

For further information, please contact Gianluca Massimei or Guido Zanchi.