Italy: Administrative copyright enforcement unconstitutional?

By EDRi · October 8, 2014

Leggi l’articolo in italiano qui:

On 26 September 2014, an Italian regional administrative tribunal referred a question regarding the constitutionality of the administrative enforcement procedures foreseen by a new regulation on online copyright infringement to the Italian Constitutional Court.

The Regulation on Online Copyright Infringement entered into force on 1 April 2014. It allows the Italian Communication Authority (AGCOM) to demand that internet access companies block access to websites hosting allegedly copyright infringing materials, 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. Even while the Regulation was being drafted, its constitutionality was repeatedly questioned by Italian civil society and academics.

Earlier in 2014, the Open Media Coalition (OMC), a group of Italian non-governmental organisations, filed a lawsuit that challenged the validity of the Regulation. On 26 September, the Regional Administrative Tribunal of Lazio (TAR) placed the proceedings of the case on hold, and referred the case to the Italian Constitutional Court. It asked if blocking orders issued by AGCOM are compatible with constitutional principles, such as freedom of expression, economic freedom and proportionality.

The TAR also questioned the constitutionality of the entire notice and take down system, and asked the Constitutional Court to review whether the European provisions which serve as the legal basis for the regulation, allowing the administrative enforcement of online copyright infringements, are unconstitutional.

The TAR noted (unofficial translation):

“The “double track,” administrative and judicial, provided for by the European Directives that AGCOM referred to, should be assessed by taking into consideration the necessity that the limitations imposed on internet communications in order to protect copyright should be balanced with other rights protected by European law, such as the principle of proportionality. However, those limitations should be subject to a preliminary judicial review. In any event, it should be borne in mind that the implementation of those Directives in the Italian legal system may not undermine the protection provided by our Constitution to other potentially conflicting fundamental rights.”

The Constitutional Court will give the answer to the question referred to it, but may take up to two years. As the TAR did not suspended the regulation, it is expected that AGCOM will continue to implement it until the answer from the Constitutional Court clarifies the situation. “It is absurd that entire websites are ordered to be blocked on the basis of a Regulation that is suspected to be unconstitutional,” stated Guido Scorza, representative of the OMC.

Italian Constitutional Court to decide whether administrative enforcement of online copyright infringement is constitutional (28.09.2014)

Italian communication authority approves administrative enforcement of online copyright infringement (17.12.2013)

AGCOM regulation on online copyright infringement (only in Italian)

Copyright online, stop and listen to the lecture of Paris, AGCOM (only in Italian, 30.09.2014)