The hosting contract and the hosting provider's liability profiles.

[:en]In recent years, the website is no longer a simple showcase used by companies to provide general information and indications on a company's activities, but rather a medium and tool for work and promotion.

Before addressing the contractual type of 'website creation', I consider it necessary to go into a very brief analysis of what is the basis of this entire contractual relationship, the ground on which web designers, in fact, carry out their activity: the web hosting contract. Just as land is needed to build a building, in the same way, web space must be acquired to publish a site. The basis of all this is therefore the so-called 'web hosting' contract, which could be defined as the contract  by which a party acquires space on one or more servers owned by a hosting provideragainst payment of a fee.

The web hosting contract falls into the category of atypical contracts, i.e. those contracts that are not regulated and governed directly by the civil code, and ultimately consists of a provision of services. The hosting provider, more specifically, makes space available to another party on one or more computers to host pages web.

One of the most legally relevant elements in this type of contract certainly concerns the provider's liability for the data stored on its servers by the operators of the sites with which it has concluded a hosting contract.

This profile is regulated by Article 16 d.l. 70/2003 (legislative decree by which the Italian legislator transposed the EU directive 2000/31 EC). Pursuant to that article:

in the provision of an information society service consisting of the storage of information provided by a recipient of the service, the provider is not responsible for information stored at the request of a recipient of the serviceprovided that this provider:

a)    is not actually aware of the fact that the activity or information is unlawful and, as far as claims for damages are concerned, is not aware of facts or circumstances that make manifest the unlawfulness of the activity or information;

b)    not as soon as they become aware of these facts, upon notification by the competent authorities, act immediately to remove the information or to disable access.

L'Article 17 of the decree also provides that

the lender is not subject to a general surveillance obligation information it transmits or stores, nor to a general obligation to actively seek out facts or circumstances indicating the presence of unlawful activities.

In this regard, an important 2009 judgment of the Court of Romein which the Court sought to clarify and specify the scope of the aforementioned legal provisions, stating that "although the internet provider is not subject to a general obligation to monitor on stored content, as this would result in unacceptable strict liabilityhe is however subject to liability when it does not merely provide access to the network, but provide additional services (caching, hosting ) and/or set up a control of information and, above all, when, aware of the presence of suspect materialrefrains from establishing the unlawfulness and removing it or if, being aware of the unlawfulness, fails to take action".[1]

The Court, therefore, given that there is no general obligation of surveillance, considered necessary for the establishment of civil liability on its part, the knowledge and awareness on the part of the provider of unlawful information or of facts and circumstances which make that unlawfulness manifest, and the failure to remove that information as soon as it becomes aware of those facts and upon notification by the competent authorities. [2]

The Court of First Instance, in this judgment, takes up the concept of strict liability, according to which a person may be liable for a tort, even if it does not result directly from his or her own conduct and is not attributable to the person's own wilful misconduct or fault. This deviates from the general principle of liability, according to which a precise causal link between the individual's conduct and the tort itself is required.

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