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.

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.

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.

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.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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Comments on “Italy's Communications Watchdog Assigns Itself Extrajudicial Powers To Order ISPs To Stop Copyright Infringement”

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out_of_the_blue says:

There are three key FEATURES: 1) no civil or criminal sanctions.

That seems a great advantage. 2) Swift action, not letting infringing sites linger as NZ did Megaupload, allowing the grifters to gain unearned millions for defense. 3) It makes ISPs good citizens. 4) — FOUR advantages: it make Techdirt fanboys go ape ranting that free speech is under attack when actually it’s only illegal infringement; more often Techdirt does that, more obviously it looks like fringe loonies.

Looks fine so far. And what does Techdirt care about conditions in Italy, anyway? You guys just seem to want infringement everywhere!

Where Mike sez: uploader + file host + links site + downloader = perfectly “legal” symbiotic piracy.


JMT says:

Re: There are three key FEATURES: 1) no civil or criminal sanctions.

…it’s only illegal infringement…

If it were only illegal infringement you might have a point, even if some of that ‘infringement’ should be perfectly legal (i.e. content taken from the public domain). But there is massive amounts of collateral damage (‘anomalies’ in blue-speak) caused by the War on Infringement, and whatever benefits the current copyright system might bring, they’re outweighed by the costs to society as a whole. Content creators are not special little flowers that need protecting from the big, bad world any more than the rest of us, and that applies even more to the corporations that actually control most copyrights.

Anonymous Coward says:

The vast majority of the world’s websites manage to police themselves and keep infringing content off their sites.

Of course Techdirt loves piracy and the profits Google collects from it, so they like to pretend there is something outrageous in what Italy is doing here.

You pirates live in your own fake reality and everyone is laughing at you.

JMT says:

Re: Re:

“The vast majority of the world’s websites manage to police themselves and keep infringing content off their sites.”

That’s a totally irrelevant (and unsubstantiated) claim. Most infringement issues come from site with user-generated content, which mean all sites that don’t have UGC have nothing to do with the discussion.

“You pirates live in your own fake reality and everyone is laughing at you.”

I can smell your desperate state of denial from here. Given the massive, worldwide scale of copyright infringement, it would seem that our reality is quite solid and everybody is actually laughing at you. More likely nobody’s laughing, just ignoring you.

Anonymous Coward says:

this is exactly what the entertainment and copyright industries have been after for a while now. it is typical in as much as those industries do nothing themselves, and pay out nothing either. they will, however, be on the receiving end of any fines taken from those accused (and obviously found guilty by AGCOM. they are not going to find in favour of anyone other than themselves). it is also making ISPs act as the ‘Internet Police’, which means that they are the ones responsible for any violations and are also liable for any penalties if not moving quick enough.
tyhe whole aim is for the entertainment industries to take control of the whole internet! if people cannot see what is happening, you deserve to lose your right to access it and do almost anything on it! the Internet is the greatest distribution method invented on the Planet. Torrents are best way to share files! wait a little longer and we will see that, instead of being the plague of the world, giving viruses to every computer, torrents will be the best thing since sliced bread, simply because those industries will be using the protocol, not ordinary people!
if the internet is handed over to the entertainment and copyright industries, they will be controlled by the USA. the USA has been well known to be supporting the entertainment industries in all they do. it has been a sprat to catch a mackerel! as soon as the industries get the control, it will be handed over to the USA and from there, the world is literally their oyster! it has long been the opinion that whoever controls the internet, controls the World! why does anyone think there has been so much shit kicked up by the various USA security agencies? while they were able to get inside information on all others when negotiating the various ‘Trade Deals’, the USA always came out on top. add in the fact that no one other than the USA industries execs were allowed into meetings, allowed to know what was going on and, even worse, allowed to influence the various rules in the deals, all while leaving out every public body, and we see the advantages it had and why it was so defensive! the TPP and the TAFTA/TTIP negotiations that are going on at the moment are such deals where the USA is dictating what is going to happen, ie, give every possible advantage to the USA while taking away as much as possible from every other nation. even though people will be dying because there will be no permitted manufacturing of generic drugs, forcing people to go without because they cant pay the extortionate prices for the USA ones, hasn’t altered anything. then add in the fact that once these ‘deals’ are in, no country will ever be able to get out of the deals as the USA is going to block anything and everything that takes something away from it. the world is going to be well and truly screwed for as long as the USA stays in control! and you can bet that there are just a few people behind this whole shenanigan! they want world domination and this is the way they are trying to get it!!

Anonymous Coward says:

Overlay network

Every time there is news like that, I see people clamoring for VPNs. But I think it will go farther than simply VPNs. Instead, if the censorship gets too heavy, we will start seeing overlay networks: encrypted wide-area networks running over the traditional Internet. Websites and users will move over to these overlay networks. Even completely legal websites will move to the overlay networks, since they are getting caught in the censorship crossfire.

Even a non-anonymous encrypted and authenticated overlay network gives users and websites an advantage. Censorship becomes an all-or-nothing deal: it cannot selectively censor a single website. And if the same protocol is used as common VPNs, it cannot be censored without risking the wrath of corporate users.

Gracey (profile) says:

[AGCOM may order the ISPs to selectively remove the infringing digital works]

… and they would expect them to do this … how?

ISPs don’t have control over websites, unless they also provide webhosting services. They only have control over what people can access. Expecting ISPs to contact webhosts they have no control over is equivalent to asking Google to have Yahoo remove content from sites using it’s hosting plan because someone out there in the world doesn’t like it.

[Looks like Agcom is in for a rough ride.]

Good. Hopefully that ride will end in a flaming bush at the bottom of Mont Blanc.

… somebody must have spiked their vino the day they thought this up … er, well apparently “thought” isn’t something that happened at all.

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