RTI vs Yahoo! Search – the provider’s liability for caching activity

With decision no. 7709/2019, the Court of Cassation ruled again on the Internet Service Provider’s liability – an issue of which we talked about amongst others here and here on this blog. The Court dismissed the appeal of Reti Televisive Italiane Sp.a. (“R.T.I.”) against the decision of the Court of Milan which assessed the lack of responsibility of Yahoo! Italia S.r.l. for the spread of illegal content, due to the caching activity carried out by the latter (for a comment on the Milan Court’s decision, see this article).

The origin of the dispute was Yahoo! Search’s indexing of different videos taken from R.T.I.’s TV programmes and illegally uploaded to the web. R.T.I. sent a warning letter to Yahoo! Italia reporting this circumstance and inviting the provider to remove the contents identified in the letter. In response, the provider informed the Milan Public Prosecutor’s Office in their capacity as the competent authority to ascertain the illicit activity, but did not comply with the removal request. As a result, R.T.I. sued Yahoo! Italia in order to have the Court assess the liability of the latter for the illicit spread of content protected by R.T.I.’s intellectual property rights.

The Court of Milan dismissed R.T.I.’s request and ascertained, on the one hand, that the activity carried out by Yahoo! Italia was a caching activity that, pursuant to Article 15 of Legislative Decree no. 70/2003, consisted “in transmitting, on a communication network, information provided by a recipient of the service“, and, on the other hand, compliance with the conditions provided by Article 15 in order to apply to the cacher the exemption from liability for the spread of illicit content uploaded by third parties.

Following the declaration of inadmissibility of R.T.I.’s appeal by the Milan Court of Appeal, R.T.I. appealed the Milan Court decision before the Court of Cassation. In particular, the appellant alleged that the Court of Milan had not properly considered the role of Yahoo! Search and the laws governing the activity of the cacher, which provide an exemption from liability for the spread of content illegally uploaded by third parties on condition that the cacher does not have any “authority or control” over the information stored but merely perform technical and automatic activities. According to R.T.I., Yahoo! Search instead performed a selective intervention on the content, which was “in no way transitory or necessary for the normal functioning of a search engine“, specifically by means of different mechanisms such as embedding (which allows the visualisation of audio-visual content remaining physically connected to Yahoo’s website), preview (which allows the visualisation of small portions of the searched content in preview), and suggest search, as well as through the presentation of videos related to the ones sought by the user. In other words, according to the appellant, the provider would have lost its neutrality with respect to the information stored by exercising control over it through the aforementioned mechanisms, which had instead been considered by the Milan Court as perfectly inherent to the activity usually performed by a search engine.

By dismissing R.T.I.’s ground of appeal, the Court of Cassation fully confirmed the findings of the Court of first instance, ascertaining that Yahoo! Search merely performs the role of a search engine, consisting of “searching and organising in a list the websites relevant to the search criteria indicated by the user, providing the links that allow the connection with each of them” and that, for this purpose, it temporarily stores a copy of each website in a cache to simplify users’ research activities, optimising time spent searching. The Court moreover specified that, in this context, the aforementioned mechanisms of embedding and suggestive search do not imply in any way the loss of neutrality of the provider, which continues to have no control over the stored information and therefore correctly benefits from the exemption from liability provided for by Article 15 of Legislative Decree no. 70/2003.

The Court of Cassation also dismissed R.T.I.’s other ground of appeal according to which, even acceding to the interpretation of the Court of Milan, the provider would in any case have been responsible for not having removed the illicit content after the warning letter, merely informing the competent authority. On this matter, the Court of Cassation, underlining that in this case Yahoo! Italia had fulfilled its obligation to communicate the letter to the competent authority, pursuant to Article 17(2) of Legislative Decree no. 70/2003, concluded that “the service provider that performs a mere neutral caching activity is not required by the law to spontaneously remove illicit content, only because it was informed about them by an extrajudicial injunction or because the rights holder initiated legal proceedings“.