This article is also available in:
Deutsch: [Italien: Fragwürdige Entscheidung über Sperrmaßnahmen | https://www.unwatched.org/EDRigram_10.6_Italien_Fragwuerdige_Entscheidung_ueber_Sperrmassnahmen?pk_campaign=edri&pk_kwd=20120328]
The Italian Antitrust Authority (AGCM) has started ordering the blocking
some websites involved in the online sale of fashion products, following
several complaints made by consumers.
It is the first blocking measure ordered by this Authority (enforced through
the collaboration with the antitrust department of the Guardia di Finanza),
which relied on the Consumer Code and e-commerce rules.
In its blocking order, the Authority does not charge the provider with
selling counterfeited products, but for the infringement of rules related to
warranties, delays and delivery conditions..
This decision has been adopted against the company called “Private Outlet,”
which is part of the e-commerce “private club,” where members can join for
free and take advantage of special promotions of famous brands fashion
products with high discounts.
AGCM has intervened after several reports of fraudulent behaviour, because
Private Outlet allegedly “spread, through its website, content liable to
mislead consumers about the availability of the products offered for sale”:
it has considered the elements collected enough to proceed a preliminary
investigation and to demand the company to suspend any activity.
In order to ensure the efficiency of the measure and ostensibly to offer
better protection for consumers, the Authority ordered the ISPs to
completely block all domains that refer to the Private Outlet network on the
whole Italian territory.
Granted that consumers protection is necessary and that the complaints are
may well be valid, it seems that this kind of measure actually goes far
further beyond what the Italian rules actually mandate.
Firstly, because these rules allow the Authority only to “demand the
provider to prevent or put an end to the committed infringements”, secondly,
because the jurisdiction to issue provisional orders against third parties
has always been exercised by the ordinary courts and, finally, because AGCM
has provided these orders without the participation in proceedings of the
subjects required to bear the measures and offer a defence.
We are talking about the exercise of an interlocutory power (which has all
the characteristics of a criminal seizure) that, apparently, the Competition
Authority believes itself to be mandated to exercise: this is contrary to
what has been stated in some decisions of the Court, that have always
attributed this power to the ordinary judicial body.
Moreover, blocking of IP address may not be sufficient to avoid the
perpetuation of fraud (the provider could, for instance, change the address
or even change its name): is it possible that the Authority cannot imagine
more effective and less controversial measures? Measures which restrict
fundamental rights that are not necessary and proportionate and that do not
genuinely meet objectives of general interest are in beach of the European
Convention on Human Rights.
Text of the provision – page. 89 (only in Italian, 12.03.2012)
Vajont.com case (libel slander) – Court’s decision declares unlawful the
blocking (only in Italian, 14.03.2012)
Moncler Case (counterfeiting) – Court’s decision rescinds the blocking (only
in Italian, 4.11.2011)
(Contribution by Elena Cantello – EDRi intern)