THE COURT OF ROME ON THE MONITORING DUTIES OF SOCIAL MEDIA.

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A recent decision by the Court of Rome established that social media platforms such as Facebook  have no duty to monitor the legitimacy of the contents published, but they are obliged to carry out a subsequent control in case  a user's reports the posting of defamatory content. In its decision, the Court analyzed the possible obligation to remove content from a provider: one wonders, in essence, if, faced with a user's grievance asocial media must proceed without delay or any other investigations to the immediate removal of potential unlawful content. The answer according to the Court of Rome is negative. There is no duty of a preventive monitoring of published contents since the only duty that is burdened and a social media is a subsequent check on a certain content, following the reporting of an unlawful post.
In the opinion of the Court of Rome, therefore, a reported abuse of defamatory content gives rise to an immediate assessment of the reported contents, but an ex parte removal obligation arises only where a manifest and evident illegal nature of the contents appear.
All in all, it is a shareable decision, because on the one hand contemplates the need to make the online service operator responsible, but, on the other hand, it does not attribute a social media with the role of censor.

Indirect and Subliminal Advertisements on Social Media.

The advertising market is undergoing a major change and indirect - subliminal advertisements promoted through online and social networks are becoming more and more common.

Indirect advertising is a clear and explicit message that appears on unusual spaces, but not mentioned as such. Subliminal advertising, instead, isn’t evident. This practice is banned by Italian law but only with respect to TV advertising and although film and television are a fertile ground for this kind of promotion, new challenges have emerged above all on social networks. Indeed, as the world wide web represents a new opportunity to express our thoughts and interests and tastes and a new way of learning and sharing information and content, companies have also begun to use them in an explicit or tacit manner.
On the one hand, we have real advertising spots and sponsorships, although not fully controlled: Facebook and Instagram, for example, check that ads don’t have an illegal content or prohibited by rules but they don’t control the accuracy of the information communicated, nor their congruity with the regulation, since there is no discipline code to be respected.

On the other hand we notice serious “product placement” proliferation within the most clicked profiles.

In this regard, the British Competition and Markets Authority stood up against disguised advertising, which is not recognizable in photos and videos posted on social media. Recently also the American Federal Trade Commission, for the first time addressed the issue, asking “web influencers” to emphasize that hidden  recognizable through hashtags or comments.

However, there are no specific rules governing indirect and subliminal and the terms of use of social media like Instagram, provide and restriction. The question arises as to whether consumers, who shall not be subject to untruthful and deceptive ads, have also the right to distinguish the advertising contents from a “lifestyle tips”.

Recently, the Italian National Consumer Union has questioned the Competition and Market Authority (AGCM) to ask for the legitimacy of indirect and subliminal advertising on social networks. The legal basis for this controversy is the article 22 of the Consumer Code which asserts that the commercial intent must be explicitly stated if it is not obvious from the context or if it is capable of misleading the consumer.

The AGCM should soon clarify the issue and provide adequate information both on the relationships between producer and influencer, and on the obligation to declare the advertising purpose of the posts.

Meanwhile, Instagram has launched a new tag, "Paid Partnership with", so that users can include it in their stories and post. Alternatively, many bloggers, including the most famous Chiara Ferragni, have started using some "claim-hashtags" such as #ad, #advertisement, or #advertising to highlight the commercial purpose of their photo, protecting the consumer.
 

Facebook's Copyright Infringement case continues in front of the Court of Milan

The case between Facebook and Faround will be heard in front of the Milan Court of Appeal on April 4. In the first degree Facebook was sentenced for the first time for unfair competition and copyright violations against Faround, a software application created in 2012  by the Milan-based company Business Competence.

On the first instance the Milan’s Court, had held that Facebook’s application Nearby was infringing Fararound’s electronic database which is protected under Italian Law.
Faround selects data on Facebook, through the profiles of registered users, and organizes and display them on an interactive map. The map then shows shops near to the user's position, also with relatives reviews and information on discounts and offers. Indeed this information is not owned by Faround. However the Court held that the mode of their organization holds a degree of originality which should be granted copyright protection. In fact, "the previous programs developed by Facebook (Facebook Places) and by third parties (Foursquare and Yelp) did not have the same capabilities as Faround: the first was a kind of pager to reach friends and not a geolocation of shops close to the user, while others were designed on the basis of logical algorithms working on the base of data entry provided by members of their social networks, and not Facebook’s.”
For these reasons, the Business Competence Srl accused and sued Facebook for infringing the application’s concept and format, launched with the name of Nearby. In addition, Nearby attracted professional advertisers, perpetrating unfair practices on the advertising market.

The Court of Milan, found that the two applications had the same functionalities and overlapped and ruled for the publication of the decision on the newspapers "Corriere della Sera" and "Il Sole 24 Ore" and, for at least fifteen days, on home page of facebook.com. The Court also banned any further use of Nearby in Italy, placing a fine of 45 thousand euro for each day of violation of its order . Facebook has appealed the decision in front of the Appeal  Court of Milan, which, at the moment, has rejected the suspension request of the provisional measures imposed at first instance.
 

The Court of Rome Rules on Copyrights Published on Facebook

The court of Rome reaffirms the application of the rules of copyright for the pictures posted on the social network by establishing that publication of photos on the Facebook page of the person who has taken them "does not involve the complete waiver of the relative copyright".

According to the Court, the freedom of use of the content posted by users by setting the 'Public' function does not cover the content that is published and which covered by intellectual property rights of users, for which the only license is the non-exclusive, transferable granted to Facebook". Under this principle the author of some photos published on Facebook was awarded damages against a newspaper that had published the same without permission.

The case stems from the publication of some photos on the personal page Facebook of a young photographer shot in nightclub in Rome. The photos then appeared, unknown to the author, in a national newspaper in support of a series of newspaper articles, related to the phenomenon of frequenting nightclubs by persons of young age and subsequently re-used by some programs television of national importance.