Italy's Communications Watchdog Assigns Itself Extrajudicial Powers To Order ISPs To Stop Copyright Infringement
from the no-judges-required dept
The last six months have seen a fierce debate in Italy over a proposal by the Italian communications watchdog Agcom to grant itself wide-ranging powers to address alleged copyright infringement online. Here's how The Center for Internet and Society at Stanford Law School described them:
The proposal is primarily intended to vest AGCOM with new administrative copyright enforcement powers. AGCOM would like to set up a system in which online copyright enforcement is done through administrative procedures, rather than civil or criminal actions. Additionally, the proposed enforcement system would not target direct infringers but rather Internet Service Providers (ISPs). Upon notice of alleged infringement, AGCOM may order the ISPs to selectively remove the infringing digital works, disable access to those works, or automatically redirect the users to a courtesy webpage. In case of especially serious instances of infringement, the proposal provides for an expedited procedure that drastically reduces the timeframe in which the alleged infringers and ISPs may respond to the allegations and subsequently take down the materials.
There are three key problems. First, this does not involve judicial authorities in deciding whether sites infringe and should therefore be blocked, even though that is the European norm: Agcom is granting itself a unilateral power to judge and punish. Secondly, it forces Italian ISPs to act as copyright cops. And thirdly, the timeframes involved are short, and make it hard for accused Web sites to appeal against allegations from copyright companies.
Unfortunately, despite widespread criticism from a broad spectrum of civil society, and even the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, Agcom has adopted its own proposals "unanimously" (original press release in Italian.) ZDNet explains how the new provisions will work:
if AgCom agrees an Italian-hosted site is infringing rights-holders' copyright, the watchdog can order its hosting provider to remove the digital works in question. Alternatively, it can also ask ISPs to block their customers' access to the site, whether the site is hosted in Italy or not. Providers have three working days to comply with AgCom's decision. In total, from the filing of the complaint to AgCom's verdict, the whole process should last no more than 35 days.
The system will come into operation on 31 March 2014, and ISPs that fail to comply face fines of up to €250,000. With big sums like that involved, most ISPs will implement Agcom's demands quickly, and without worrying about the details. Since Agcom is not an expert in the complex field of copyright law -- that's what judges are for -- its rulings may not be correct from a legal point of view. The extremely short time-scales involved will make errors even more likely, with the result that perfectly legitimate sites will be blocked -- perhaps many of them. Because the costs will fall on the ISPs -- another flaw in Agcom's approach -- the former will want to avoid receiving such orders in the first place, and may engage in pre-emptive blocking of materials just to be on the safe side. Taken together, all these factors are bound to have a chilling effect on free speech in Italy -- hence the concern of Frank La Rue.
However, in cases where AgCom deemed there is a "serious violation of the economic exploitation of the rights of a digital work" -- that is, the rights-holder could lose a substantial amount of money -- the procedure can be speeded up to 12 days. In such instances, if the rights-holder's claim is upheld, hosting providers and ISPs are only given two working days to comply.
There is growing political resistance to the move, as another post on the blog of The Center for Internet and Society at Stanford Law School explains:
The Italian Minister of Foreign Affairs, Emma Bonino, repeated La Rue's points almost verbatim, and expressed hope that the Senate and the Chamber of Deputies would intervene as soon as possible. Reacting to Minister Bonino's call, both the President of the Italian Senate and the President of the Chamber of Deputies asked the Parliament to intervene with a new regulation in order to overcome the controversial proposal of AGCOM.
Moreover, in making these moves, Agcom may well have exceeded its authority. As ZDNet reports:
[The Italian ISP association] Assoprovider said it will challenge the legitimacy of the regulation in front of regional administrative court of Lazio, Italy's highest administrative tribunal, and it won't be alone. "Several small and medium business associations and consumer groups are joining them," said Fulvio Sarzana, a lawyer specialising in telecommunications law who will lead the case. He declined to say who because, he said, "we don't want to give any advantage" to the opposition.
Looks like Agcom is in for a rough ride.