On 3 December 2015, the Italian Constitutional Court was asked to decide on the constitutionality of a law giving the authority to the Italian Communication Authority (AGCOM) to regulate on Copyright enforcement measures (the national law transposing the e-commerce Directive).
Previously, on 26 September 2014, an Italian regional administrative tribunal (TAR Lazio) referred the question to the Italian Constitutional Court, following a claim brought by a number of consumer associations and Italian non-governmental organisations (such as Altroconsumo, Assoprovider, Movimento di Difesa del Cittadino).
The dispute started on 1 April 2014, when AGCOM, on the basis of the aforementioned law, issued a widely contested Regulation on Online Copyright Infringement. Under this Regulation, the Italian Authority may order access and hosting providers to block websites or to remove contents allegedly infringing copyright, following a short administrative procedure. The blocking or removal takes effect within five days (or 72 hours, in expedited proceedings) from the receipt of the complaint.
The regional administrative tribunal did not ask for a ruling on the constitutionality of the Regulation itself, but questioned more specifically the law on which the regulation was grounded. By referring the question to the Court, TAR Lazio contested the administrative and judicial “double-track” on the basis of which, ordinary judges and AGCOM are both separately entitled to decide on copyright infringements. TAR Lazio argued that, in the light of the EU jurisprudence (Scarlet/SABAM, L’Oréal, Telekabel), that a balance between copyright and fundamental rights should be struck by a judge. Also, the regional tribunal noted that the law was in contrast with the principles of freedom of expression, economic freedom and proportionality.
The Constitutional Court, from its side, held that the constitutional question raised by TAR Lazio was not admissible. The decision obviously lead to many concerns and doubts. In fact, even though it rejected the question, the Court observed how “the contested dispositions do not expressly give AGCOM any authority to regulate on online Copyright infringements”. Despite that, it is not clear if the Constitutional Court wanted to criticise the TAR Lazio’s interpretation of law, or had the subtle intention to observe that AGCOM is lack of authority.
The saga did not come to an end yet. The question now goes back to TAR Lazio, for a definitive decision.
In this matter, “nobody won and everyone has lost” says Guido Scorza, (representative of the “National Online Press Association” before the Court), “AGCOM started working on the Regulation five years ago and decided to obstinately continue on this path by regulating with a complete lack of authority. It is a pity that a country with such democratic ambitions must read in a Constitutional Court decision that an independent national authority has written a whole regulation “without any legitimacy given by law”.
The Constitutional Court did not set things clear, and in Italy still stands a vacuum, before the hard balance between fundamental rights and copyright.
However, it appears clear that the new EU Regulation on roaming and net neutrality, which has now entered into force changes the situation significantly for the better. From now on, restrictions like blocking may only be implemented in the context of a clear legal framework. It is to be hoped that the necessary reforms are therefore put in place voluntarily by the Italian authorities, rather than waiting for another round of legal action.
EDRi: Italy: Administrative copyright enforcement unconstitutional? (08.10.2014)
TAR Lazio Decision (26.09.2014) (in Italian)
Italian Constitutional Court ruling, Sentence of the 3 December 2015 n. 247 (in Italian)
Copyright online: Agcom regulation is unlawful, says the Constitutional Court. We all have lost (4.12.2015) (in Italian)
(Contribution by Elisabetta Biasin, Intern at EDRi)