By EDRi

This article is also available in:
Deutsch: [Das FAVA Gesetz – ein neuer Versuch zur Beschneidung der Bürgerrechte in Italien | https://www.unwatched.org/EDRigram_10.2_Das_FAVA_Gesetz_ein_neuer_Versuch_zur_Beschneidung_der_Buergerrechte_in_Italien]

There is a wide (and mainly unjustified) hype, in Italy, about a draft
law proposed by a Mr. Fava, an MP belonging to the right wing party
“Northern League”. He asked the Italian Parliament to burden the ISP’s
shoulders with a duty of pre-emptive control (and consequent
liability in case of lack of) for the wrongdoings of its users in the
counterfeit milieu.

Mr.Fava’s proposal is nothing but the last of a series of draft laws
proposed during the past ten years, aimed at this same target, and supported
by the endorsing MPs as a way to fight child pornography, defamation,
copyright and – finally – the selling of counterfeit goods.

None of these proposals have ever outcome in a law, nevertheless they
spread the wrong message that, on the Internet, the principle of the
“personal liability” i.e. every person is responsible for his own
actions – doesn’t work. The same, indeed, is true for Fava’s bill.
Coming to the specific topic, Mr. Fava proposed the amendment of the
legislative decree 70/2003 enforcing in Italy the EU E-commerce directive to
widen the ISPs’liability.

Technically speaking, Mr. Fava’s proposal has no ground.
Counterfeit is, in Italy, a crime, and criminal law already punishes
both the author of the crime and whoever gives him support (as
associate or accomplishes.) Thus, if an ISP is found actually
supporting a counterfeit crime (or any other kind of crime) can be
prosecuted within the current legal framework, without the need of
additional provisions.

Furthermore, as said, the legislative decree Mr. Fava wants to amend
is the verbatim enforcement of an EU directive that contains none of
what Mr.Fava wishes. Thus, the Italian Parliament has no “jurisdiction”
over a European Union’s settled law.

But why, then, did this proposed bill raise so many concerns?
First, “digital rights” and “free speech” have fallen into media
“blending machine” and civil rights issues are often “blurred” with
claims of immunity for third party rights infringements. So, a
cultural alliance between non-specialized journalists and opinionists
invariably leads to threatening claims about the end of free speech
and to the same invariably useless facebook fanboys’ indignation.

Copyright, trademark and patent laws are actually damaging the essence
itself of the civil rights (look at Apple’s attempt to gain
control over ideas through IP law-backed lawsuits) but this has
nothing to do with the immunity asked by those who want to be free to
download LOST’s last season for free. The problem is that the
journalists don’t want to enter what is a perceived as
complicated line of thinking, fearing to bore the readers. They want a
cheeseburger-like stuff: easy to “cook”, fast to deliver and “tasty” to
eat. So long if that’s junk food. Of course this is not an absolute
statement, but a recognition of what often happens into the wild of
the media frenziness.

Second, MPs are always seeking for industry support and vice-versa.
This time (late according to software, entertainment, media and publisher
industry) is the moment of the fashion manufacturing industry to try
to shift the liability of users on the ISPs shoulders. This is the
issue that Mr. Fava’s proposal wants to deal with.

Third, despite the “ISP liabililty war” that has been fought in Italy for at
least fifteen years, the Telco and ISPs industry didn’t set up a
long-term strategy to counter the attempt of both the governments and
some specific industry sectors to obtain laws protecting very narrow
interests. The result is a “stop-and-go” activity that only handles
the urgency of a specific situation. No energy is allocated on the
spreading of a cultural framework that shows how the protection of
civil rights is a valuable asset for both the industry and the government.

In conclusion, Mr.Fava’s bill is nothing but another nail in the
coffin of civil rights protection because, again, it shifts the focus of
the attention from the true threats against the citizens to the
claimed “protection” of limited economic interests. It will not stop
criminals, while it will put the rights of honest people in danger.

Amendment suggested by Mr. Fava (only in Italian, 12.2011)
http://nuovo.camera.it/453?bollet=_dati/leg16/lavori/bollet/201112/1214/html/14#156n1

Copyright, the beautiful country of the SOPA (only in Italian, 20.01.2012)
http://punto-informatico.it/3406503/PI/News/copyright-sopa-del-belpaese.aspx

Intermediaries, private removals? (only in Italian,19.12.2011)
http://punto-informatico.it/3369614/PI/News/intermediari-rimozioni-private.aspx

Towards an Italian SOPA? (30.01.2012)
http://www.medialaws.eu/towards-an-italian-sopa/

(Contribution by by Andrea Monti – EDRi-member ALCEI, Italy)