The Court of Milan on the disclosure of court decisions and unfair competition

The recent decision no. 2173/2018 of the IP Court of Milan analysed the compatibility of the disclosure of court decisions, or news related to them, with the unfair competition law, when carried out on the initiative of the interested party (rather than following an order from the Judge, which in the case at issue had been requested but not granted).

In examining the issue, the Judges preliminarily stated that such a dissemination of information may in fact amount to an act of unfair competition, pursuant to art. 2598 Civil Code, if it does not comply with the necessary rules of correctness and good faith. Thus, the decision states, “this activity is considered lawful in general”, but it must be taken into account that, when something is stated specifying that it is written in a court order, the news “acquires greater persuasive effectiveness and is therefore much more suitable to generate, in the public, the conviction of the validity of the statements disclosed”.

Consequently, particular caution must be exercised in the disclosure, which “must not be implemented in ways and forms such as to generate in third parties an incorrect representation of the content of the measure or the progress of the proceedings. In other words, the communication must avoid any tendency, indicating all the circumstances and the clarifications necessary to form, in the addressees of the information, a correct opinion“. To this end, “the disseminated message must contain all the elements that, on the objective level, contribute to characterise the situation to which the court order refers“. Therefore, for example, in communicating the outcome of a proceeding, all the elements that may limit or specify the scope and intensity of the effectiveness of the relevant order must also be indicated, as well as specifying its possible precautionary nature.

In the case at issue, the Judges ruled that the disputed disclosure of information did not constitute unfair competition. In fact, according to the decision, the scope of the measure obtained was correctly clarified, with specification of the provisional nature of the same and of the fact that it could be appealed, and with clarification that the order (specifically, seizure) related to only some of the products of the competitor.