By Dan Cooper and Oliver Grazebrook

On 20 June 2103, the Court of Rome in Italy ruled that the Wikimedia Foundation (the charitable organisation that operates Wikipedia) could not be liable for defamatory content posted by users on its site.  The court deemed that Wikimedia fell within the exemptions in the Italian transposition of Articles 14 and 15 of the E-Commerce Directive, which state that “hosting providers” cannot be liable for information stored on their service and that there is no duty to monitor such content.

In the case (described in this press release), Cesare Previti, a former Italian Minister under Silvio Berlusconi, sued Wikimedia on the grounds that his Wikipedia page contained information that was inaccurate and defamatory, calling it “pseudo-journalistic gossip fed by totally unreliable people.” However, the court dismissed his claim on the grounds that Wikimedia is explicit about categorizing itself as a hosting provider that “offer[s] a service precisely structured around the users’ freedom to compile the encyclopedia entries” and allows users to edit any inaccurate content themselves.

The European Court of Justice, when examining this issue in the past, appear to focus upon the degree to which the internet service provider is involved in providing the service.  In Google v Louis Vuitton, the ECJ held that Google could not be liable for trademark infringement when it allowed Louis Vuitton’s competitors to buy advertising keywords protected by Louis Vuitton to advertise their rival products, as Google was playing a neutral and passive role.  Conversely, in L’Oréal v Ebay, the ECJ ruled that Ebay could be liable for allowing users to sell counterfeit goods through its service, as it played an active role by purchasing protected keywords through Google AdWords to optimize the presentation of the infringing goods.