ENDitorial: Why "Olivennes Bill" wouldn't work in Italy

By EDRi · April 22, 2009

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Deutsch: [ENDitorial: Warum „Olivennes Gesetz“ in Italien nicht funktionieren würde | http://www.unwatched.org/node/1380]

“Olivennes Bill” (named after the French lobbyist who proposed it, also
known as Hadopi law or 3 strikes law) on copyright protection has been
blocked by the French Parliament a couple of days ago (but there is little
doubt that French Government will try to have it approved ASAP). If
(better, when) passed, this bill would have enforced a “parallel indictment
system” handled by an “independent” authority called HADOPI acting as an
actual Justice Court, that is given the power to decide, without a fair
trial, whether a person deserves to be disconnected by the Internet after
being warned twice by copyright holder through the concerned Internet Access

Entertainment Industry lobbyists like this approach very much and are
pushing hard to have Italy enforce it too. “The Problem” is – fortunately –
that Olivennes Bill Italian version would be affected by serious legal
and Constitutional flaws, thus making it impossible to pass, for a number of

First, the Italian Code of electronic communication (L.259/03) sect. 4 para
I letters f) g) and h) make network neutrality mandatory. To impose over
Access Providers’ shoulder filtering duties or any other technological
activity limiting the way Italian Public Network (rete pubblica di
comunicazioni) works, would be what the Code calls “discrimination among
specific technologies” and “forcing the use of a particular technology
against others”.

Second, the Access Providers would be forced to report to the Public
Authorities their users’ criminal behaviour by fault of cross-combination
between legislative decree 70/2003 (enforcing EU directive 31/00 on
e-commerce and access/content providers online liability) and sect. 171 bis
et al.of Law 633/41(Italian Copyright Law). Legislative Decree 70/2003, in
fact, makes an Access Provider non-automatically accountable for its users’
actions, provided that it doesn’t willingly become part of those actions.

Furthermore, the Decree says that the Access Provider must report to the
police forces any criminal misconducts as soon as he’s been given sound
evidence of a criminal behaviour committed by an Internet user, thus forcing
the prosecutor to start a criminal investigation. All this is possible
because Italian Copyright infringement provisions are “designed” to be
mandatorily investigated by the Public Prosecutor. Then, should Italy
enforce an Olivennes-like legislation, there would be a “double trial” for
the same (alleged) fact: the first – real – under a Court scrutiny, the
second – “mock” – run by an “independent” authority, leading to a conflict
of public powers.

Third, as a side question, nobody told Mr. Olivennes that his bill is oddly
similar to ancient Western Europe Barbarian laws, where it didn’t matter who
the actual culprit was, because the victim had the right to retaliate
against any other culprit’s family member. This is what Mr. Olivennes
proposes: to seclude a whole family or company from the Internet for the
(alleged) wrongdoing of a single member.

Not bad, as an exercise on democracy.

Why “Olivennes Bill” wouldn’t work in Italy

(contribution by Andrea Monti – EDRi-member ALCEI – Italy)