INFORMATION TECHNOLOGY
TAR Lazio: the automated control of any illegal content does not make the hosting provider liable.
The provider who is not aware of the illegal activity that takes place through its services is not responsible for it. The Lazio Regional Administrative Court, section IV, judgment no. 1393/2024 upheld the appeal of Facebook (Meta Platforms Ireland Ltd) by annulling Agcom resolution no. 422/22/Cons of 14 December 2022 which had sanctioned it with a "fine" of 750 thousand euros.
The social giant had ended up in the crosshairs of the Communications Authority for the violation of the ban on gambling advertising (provided for by the "Dignity Decree" of 2018), having found on some days in May 2022, the presence of "paid sponsored" content suitable for advertising online gaming and betting with cash winnings.
The TAR recalls that the Directive on e-commerce (Directive 2000/31/EC) has introduced an exemption from liability for hosting service providers who are not aware of the illegal activities that take place through their services, provided that, having become aware of them, they act immediately to remove them. The jurisprudence (both EU and national) has then interpreted the rule by limiting immunity only to the hypothesis in which the hosting provider remains neutral with respect to the content placed on the network.
In particular, EU case-law distinguishes between two types of hosting providers: (a) that of the "passive" hosting provider which carries out "an activity of providing services of a purely technical and automatic nature", without therefore controlling the information; b) that of "active" hosting provider, "when the activity also concerns the contents of the service rendered".
The latter figure of "active provider" refers to the EU Regulation 2022/2065 (on digital services, which applies from 17 February 2024) according to which: "The exemptions from liability set out in this Regulation should not apply where, instead of being limited to a neutral provision of the services through a purely technical and automatic processing of the information provided by the recipient of the service, the intermediary service provider plays an active role in giving it knowledge or control of that information."
However, the regulation also specifies that the exemption should instead be extended in the event that providers carry out on their own initiative - as in the case of Meta Platforms Ireland - activities aimed at identifying and removing illegal content stored by users. In short, the adoption of control systems is not sufficient in itself to make the provider an "active hosting" (responsible for the content itself) and to determine the inapplicability of the exemption.
Returning to the specific case, for the TAR it is "undisputed" that Meta's control system is "mainly automated" in nature and that manual verification "intervenes in residual hypotheses and for a very limited number of cases". It must therefore be ruled out that, in the case at hand, Meta can qualify as an active hosting provider considering that: a) the ad control system did not involve any manipulation of the data; b) the only possible manipulation is the "refusal" of the advertisement.
The rule, explains the Board, aims to prevent providers from being exposed to the risk of being excluded from the application of the liability exemption clause for the sole fact of having a control system of the content "uploaded" by users of the service.
Nor, for that matter, has Agcom demonstrated that there was one of those limited cases in which, as a result of the automatic control, the verification of a natural person intervenes (so-called "human review"), which instead "may imply the condition of actual knowledge capable of justifying a charge on the part of the provider by way of competition".
Ultimately, the TAR held that: 1) the automated control mechanism is not sufficient to qualify Meta as an active hosting provider; (2) actual knowledge of the illegal activity has not been demonstrated; (3) it was only after notification of the complaint that the applicant became aware of the existence of the unlawful advertisements and removed the "posts".
Source: Il Sole 24 Ore - Author: Francesco Machina Grifeo - Ownership of the contents: Gruppo Il Sole 24 ore.
The social giant had ended up in the crosshairs of the Communications Authority for the violation of the ban on gambling advertising (provided for by the "Dignity Decree" of 2018), having found on some days in May 2022, the presence of "paid sponsored" content suitable for advertising online gaming and betting with cash winnings.
The TAR recalls that the Directive on e-commerce (Directive 2000/31/EC) has introduced an exemption from liability for hosting service providers who are not aware of the illegal activities that take place through their services, provided that, having become aware of them, they act immediately to remove them. The jurisprudence (both EU and national) has then interpreted the rule by limiting immunity only to the hypothesis in which the hosting provider remains neutral with respect to the content placed on the network.
In particular, EU case-law distinguishes between two types of hosting providers: (a) that of the "passive" hosting provider which carries out "an activity of providing services of a purely technical and automatic nature", without therefore controlling the information; b) that of "active" hosting provider, "when the activity also concerns the contents of the service rendered".
The latter figure of "active provider" refers to the EU Regulation 2022/2065 (on digital services, which applies from 17 February 2024) according to which: "The exemptions from liability set out in this Regulation should not apply where, instead of being limited to a neutral provision of the services through a purely technical and automatic processing of the information provided by the recipient of the service, the intermediary service provider plays an active role in giving it knowledge or control of that information."
However, the regulation also specifies that the exemption should instead be extended in the event that providers carry out on their own initiative - as in the case of Meta Platforms Ireland - activities aimed at identifying and removing illegal content stored by users. In short, the adoption of control systems is not sufficient in itself to make the provider an "active hosting" (responsible for the content itself) and to determine the inapplicability of the exemption.
Returning to the specific case, for the TAR it is "undisputed" that Meta's control system is "mainly automated" in nature and that manual verification "intervenes in residual hypotheses and for a very limited number of cases". It must therefore be ruled out that, in the case at hand, Meta can qualify as an active hosting provider considering that: a) the ad control system did not involve any manipulation of the data; b) the only possible manipulation is the "refusal" of the advertisement.
The rule, explains the Board, aims to prevent providers from being exposed to the risk of being excluded from the application of the liability exemption clause for the sole fact of having a control system of the content "uploaded" by users of the service.
Nor, for that matter, has Agcom demonstrated that there was one of those limited cases in which, as a result of the automatic control, the verification of a natural person intervenes (so-called "human review"), which instead "may imply the condition of actual knowledge capable of justifying a charge on the part of the provider by way of competition".
Ultimately, the TAR held that: 1) the automated control mechanism is not sufficient to qualify Meta as an active hosting provider; (2) actual knowledge of the illegal activity has not been demonstrated; (3) it was only after notification of the complaint that the applicant became aware of the existence of the unlawful advertisements and removed the "posts".
Source: Il Sole 24 Ore - Author: Francesco Machina Grifeo - Ownership of the contents: Gruppo Il Sole 24 ore.
