Responsibility of the search engine in the case of 'caching'.

In May this year, the Industrial Property Section of the Court of Florence had to decide on a very interesting issue for all web users. The case is easily summarised: Titius, entrepreneursurfing the web he discovers a site in which photos of him are reproduced and defamed their company name.

Since the webmaster or site operator could not be traced from the site, he decided to contact Google Inc. directly (US headquarters), asking them
by remove the link from the search engine to the disputed site. Following the rejection of GoogleTitius decides to bring an action.

On 12.5.2012, the Court of Florence issued an order excluding Google's liability for the following reasons:

• the activity of search engines is a mere caching, formerly Article 15 of Legislative Decree 70/2003;
• the search engine is obliged to remove links only by order of the competent body.

Dwelling briefly on the first point, it may be noted that the ordinance is of the opinion that search engine caching is a mere caching activity, since it is limited "indexing of sites and caching of their content, with temporary storage of information". Internet operators, therefore, appear to be mere intermediaries and, as such, not can be considered responsible for content conveyed by third parties.

As to the second point, the order focuses on the obligations of search engines when they receive requests to remove or disable access to certain content. The Court states on this point that "theactual knowledge of the alleged unlawfulness of the content of the website in question cannot be deduced even from the content of the party's warnings, since they are unilateral statements."

Moreover, about the knowledge of offences, these are not presumed on the basis of mere complaints by network usersbut it is necessary that a "competent body declared the data to be unlawfulor ordered the removal or disabling of access to them, or that a damage has been declared to exist'. or, again, 'that the ISP itself is aware of such a decision of the competent authority. "

This decision seems to replace the previous jurisprudential orientation that, applying legislative decree 70/2003 extensively, considered it sufficient for the subject to communicate to the intermediary the link of the site containing the allegedly infringing material.

This orientation, in the opinion of the writer, rightly overtaken by the order under review, which is, moreover, very important in the sector, since clear directives are issued and the liability of legal figures that are not yet completely well defined is firmly delineated.