The European Commission is concerned about a draft Italian law requiring video-sharing platforms such as YouTube to check that user-generated content is lawful before it is posted. Many fear that the move – a clear breach of the E-Commerce Directive – could set a dangerous precedent for other EU countries to follow.
The Italian draft rules, likely to become law this week, transpose the Audiovisual Media Services Directive into the Italian legislative system. The law amends the previous Television Without Frontiers Directive.
However, in doing so it contradicts the E-Commerce Directive by posing an enormous bureaucratic burden on the shoulders of Internet operators offering user-generated videos, like YouTube and Daily Motion.
In fact, it requires operators to preview what is posted on their platforms to prevent the publication of illegal material, such as pornographic and pro-terrorism videos, which tend to breach copyright and privacy laws and may lead to other potential criminal offences.
The draft decree treats video-sharing platforms as normal televisions, without taking into consideration that user-generated content makes up a large proportion of what Internet platforms offer.
“When this directive was debated at length in Brussels, it was clearly decided that user-generated video content should not be regulated in the same way as traditional TV content,” commented Google’s senior policy counsel in Italy, Marco Pancini.
“If it was, then people would find it far more difficult to use video sites to share their videos. So we hope that Italy does not go down a different path and start to regulate videos that people upload to the Internet in the same way as they regulate TV,” he added.
An obligation to preview the hundreds and hundreds of videos posted every hour would make it impossible to maintain the service, claim experts from Google, which owns YouTube.
On the contrary, at the moment video-sharing website operators are required to remove illegal material after it has been published on their platforms. Such removals take place after a video has been posted in the event that it turns out to be illegal, and not beforehand.
If Internet providers are obliged to carry out pre-emptive checks of a video’s legality to avoid fines or criminal prosecutions, “it would be like shutting down the post office and criminally prosecuting its employees because someone mailed an inappropriate letter,” argued one industry expert.
Following complaints from many actors, including the Association of All-Italian Internet Service Providers (AIIP), the European Commission decided to intervene.
“The Commission services will launch an infringement procedure for non-notification against Italy,” an EU official told EurActiv, stressing that Italy was far behind in transposing the Audiovisual Media Services Directive, which was supposed to become law in all member states by 19 December 2009.
The official also underlined that “the E-Commerce Directive provides that there is no general monitoring obligation for Internet service providers”. Moreover, the official made clear that “pure video-sharing platforms do not meet the definition of an audiovisual media service,” and therefore should not be covered by national laws “as far as they do not exercise editorial decisions”.
Freedom of the Internet under attack
The EU move may represent a political desire to stigmatise the draft Italian law, seen as a dangerous model that may tempt other member states eager to limit online freedomd for the sake of security, copyright protection and other prevailing interests.
In Italy, video-sharing services are under attack. A criminal trial is ongoing against Google’s executives after a video showing a boy with Down’s Syndrome being attacked by bullies was posted on the search engine’s video site. If convicted, they face up to a year in prison (EurActiv 17/12/09).
YouTube has also lost a legal battle against Prime Minister Silvio Berlusconi’s media empire, Mediaset, for publishing copyrighted videos. In the US, entertainment giant Viacom obliged YouTube to withdraw thousands of its videos posted on the platform.
In Germany, there are attempts to clarify the search engines’ possible legal responsibility for the results shown for users’ queries. In many EU countries, the idea of obliging Internet service providers to become a quasi-police of the Net is still circulating, despite many failed attempts to make it law.
The Electronic Commerce Directive, adopted in June 2000, is meant to provide legal certainty across the EU on all areas related to online commerce. The directive limits the liability of intermediary services in transmitting, 'caching' and storing information.
"Member states shall not impose a general obligation on providers […] to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity," reads the legislative text.
But a decree signed by Italian Vice-Minister for Industry Paolo Romani instead foresees strong penalties for intermediaries which publish illegal content on their platforms.