Mambo Italiano: the perilous Italian way to ISP liability

This chapter critically explores the current state-of-the-art in Italy regarding the liability of Internet service providers. It presents an overview of the three main phases which the author identifies in the case law of national courts. Particularly, the contribution looks at the implementation of the E-Commerce Directive into the Italian legal order and addresses some criticisms regarding the vagueness of some of the relevant domestic provisions. It also analyzes the significance attached to the case law of the Court of Justice of the European Union focusing on ISP liability, which has led some Italian courts to develop a new instrument with what I claim are no firm legal foundations: the so called ‘active’ hosting provider. The essay then draws up a map of the attitudes which ordinary courts afforded toward this interpretative option, most notably prior to the Supreme Court endorsement of the ‘active’ hosting provider avenue in a 2019 landmark judgment. Finally, I argue that such interpretation goes against legal certainty, leavening very unclear the conditions under which the legal regime enshrined in the E-Commerce Directive and national legislation is still applicable, ultimately undermining freedom of speech.