Italian Court excludes Wikipedia and Wikimedia foundation‘s liability in defamation case

In the past years -- with the constant development of on line technology-- trade mark and copyright owners have been inclined to enforce their exclusive rights, more or less successfully- against Google or E-bay for example- in order to stop infringement at the source: the internet service or referencing provider which facilitates users with the "tools" to infringe. On a case-by-case basis, Courts issued decisions regarding the question of ISP’ liability on direct or contributory infringement actions of intellectual property rights and personality rights – all of which practically aim at controlling the illegal use of one's name, image, likeness or identity and avoiding injury to reputation.

On June 20, 2013, the Court of Rome decided on such a case and found that according to Articles 16 and 17 of Italian Legislative Decree 70/2003, the Wikimedia foundation is a hosting provider, rather than a content provider and therefore could not be liable for content drafted by individual users.

A bilingual English-Italian press release can be found here. The summary of the facts and legal claims are as follows: 

Any Kat gets easily  lost
in the labyrinth of never-
ending Wikipedia links 

In January 2013, Mr Cesare Previti, a former Italian Minister of Defence during Mr Silvio Berlusconi’s term as Prime Minister, served a lawsuit against the Wikimedia Foundation on the grounds that the Italian-language Wikipedia article “Cesare Previti” (himself a lawyer and not a stranger to trials according to his current Wikipedia page) were inaccurate and defamatory. Mr Previti claimed the Wikimedia Foundation should be liable for providing a place for allegedly defamatory content to exist, in particular he characterized his page as containing “pseudo-journalistic gossip fed by totally unreliable people” (point 2 of the Complaint).

In order to rule that the defendants should benefit from the exemption of liability, the Court considered two factors:

1. Wikipedia states very clearly its role as a hosting provider by means of its General Disclaimer (including but not limited to ‘may contain spoilers, errors, bias, and -- more dangerously -- contain triggers for people with post-traumatic stress disorder, etc). The service offered is precisely structured around the contributions by the users’ community and freedom to compile Encyclopedia entries. Due to this explicit role and to the open and fluid nature of the projects, Wikipedia cannot guarantee the accuracy of its content;
2.  Mr Previti had methods to address potential inaccuracies in his Wikipedia page which is open for all to edit (the Edit Tab is easily findable on the right hand corner between the Read and View History Tab) through the community review processes.

The Roman Court concluded “The Wikimedia Foundation] offer[s] a service precisely structured around the users’ freedom to compile the encyclopedia entries. It is exactly such freedom that leaves out the duty to provide any guarantee, and that is balanced by the possibility for anyone to modify the encyclopedia contents and to ask for their elimination . . .”. Decision at point 7 (English translation).

This judgment is within the scope of reasoning in Louis Vuitton v. Google (CJEU, 23 March 2010) which held that internet referencing providers, such as the Google Search engine, are regarded as a hosting services provider and thus benefit from the liability exemption under Articles 14 and 15 of the E-commerce Directive 2000/31/EC (implemented by Legislative Decree 70/2003 in Italy), whereby objective liability of the “neutral host” provider is excluded, i.e. there is no “general obligation of monitoring information it transmits or stores.”
Nevertheless, in another defamation case rendered earlier this year, the UK Court of Appeal in Tamiz v Google Inc  (14 February 2013) ruled that Google, as the host of the Blogger.com site, cannot always benefit from the exemption of liability when it fails to take down or disable access to defamatory content once it receives notice that it is hosting such content.

This Kat was not able to get her paws on the Italian judgment yet but is looking forward to reading the full decision, in particular what may be the specific content  of the “pseudo-journalistic gossip fed by totally unreliable people”.

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