Recenti tendenze in tema di responsabilità degli intermediari di Internet nella tradizione giuridica occidentale

This article explores the recent developments in the current interpretationsof safe harbour provisions regarding the liability of Internet Service Providers(ISPs) in both the U.S. and E.U. legal systems. As regards the U.S. approach,the ever-increasing volume of take down notices that are now being sent bycopyright owners can be viewed as an example of the success or, conversely,of the failure of the DMCA notice and take down regime to sufficiently tacklethe proliferation of online infringement. In order to appreciate the new approachrequired by the content owners to move from a notice and take downregime to a notice and stay down regime, the essay takes into considerationthe U.S. Copyright Office public consultations on the impact and effectivenessof the DMCA safe harbour provisions and the judicial interpretations of keyconcepts of the notice based liability system, such as the “actual” and “red flagknowledge” standards and section 512’s requirement that ISPs reasonably implementa “repeat-infringer policy”. As far as regards the new tendencies in theU.E. approach to the questions of ISP’s safe harbour provisions, the situationis more fragmented. This unevenness stems from at least two main sources: onthe one hand, the lack of both a proper pan-European notification system(aimed to provide the ISP with “actual knowledge” of infringement) and acounter-notification procedure (aimed at challenging the shortcomings of erroneousor fraudulent take down notices) and on the other hand, the recent legislativeand judicial departure from the current regime. With respect to the latter,the essay looks at the European Commission’s proposal to update the EUcopyright framework in order to reflect the evolution of digital technologiesthrough a requirement for ISPs to implement content filtering technologies andalso looks at the recent European case law which proposes a mandatory filteringobligation on conduit internet service providers: the essay reflects uponhow neither of the above approaches seem to sufficiently take into considerationthe interests of both individual Internet users and the general public inprotecting legitimate online speech and in ensuring access to legitimate content.