Passive vs active hosting provider: the Consiglio di Stato upholds distinction under Consumer Code

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The Italian Supreme Administrative Court confirmed that a passive hosting provider is not liable, under the Consumer Code, for not having provided the consumers with information held by the users operating through the online platform[1].

The ruling concerns the secondary ticketing marketplace Ticketbis, which was fined by the Italian Competition and Consumer Authority (AGCM) for unfair practices in breach of the Consumer Code (Legislative Decree 206/2005 implementing Directive 2005/29/EC)[2]. According to AGCM, Ticketbis did not publish clear information with respect to the secondary nature of the marketplace and to the characteristics of the tickets with reference to the seat location and face value. In particular, the Authority lamented that Ticketbis did not display mandatory fields to be filled by the sellers with the relevant information, thus triggering a misleading conduct in breach of Ticketbis’ professional diligence.

In first instance, the Regional Administrative Court upheld AGCM’s decision. The Court reminded that the exemptions from liability established by Article 14 of Directive 2000/31/EC “cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’”[3]. Article 14 does not exempt the passive hosting provider from liability deriving from its own activity rather than information storage.

On appeal, the Supreme Administrative Court overturned the first instance ruling thus annulling AGCM’s decision. As previously stated in the Viagogo case[4], the Court pointed out that hosting providers under Directive 2001/31/EC shall comply with the rules on unfair practices against consumers, pursuant to the Consumer Code. While it is possible to fine the passive hosting provider for breach of its own professional diligence, according to the Consumer Code the Authority cannot impose further obligations with respect to those stemming from Directive 2001/31/EC and from the specific contract entered with the users.

Under the contract at hand, the Court pointed out that Ticketbis operated as a passive hosting provider within the meaning of Directive 2001/31/EC. Accordingly, AGCM was not allowed to change its nature by means of the obligation to publish information not held by the online platform. However, in order to protect consumers AGCM could order Ticketbis to clarify on its website the secondary nature of the marketplace and to publish a disclaimer on the lack of relevant information for the purchase decision by the consumer.

 

 

 

[1]See judgment 1217/2020released on February 12, 2020.

[2]PS10611, Ticketbis – Mercato secondario.

[3]See ECJ, joined cases C-236/08 to C-238/08, para. 113.

[4]Judgment 4359/2019 commented on this blog by V. Cocca, S. Gobbato, Secondary ticketing and hosting providers: the Italian Viagogo case, November 7, 2019.

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