Italy's First Attempt To Block Websites With No Judicial Review Reveals How Dangerous The System Is
from the this-is-a-problem dept
Late last year, we wrote about how Italy was about to change some of its copyright enforcement setup to give enforcement powers to regulators instead of the courts. That is, regulator AGCOM could now simply declare — with no judicial review or due process — that certain sites were infringing and then order ISPs to block access to those sites. While other Italian prosecutors have sought to do the same thing, AGCOM now has the official power to delete websites off the Italian internet if they so much claim they’re somehow infringing.
Recently, AGCOM decided to exercise its new power, issuing its first administrative blocking injunction against a site called Cineblog01 — meaning that ISPs in Italy need to block users from accessing the site. Now, it does appear that the site was linking and/or embedding certain films that may have been infringing. But there are still serious problems with the injunction. IPKat, who wrote about this, details three fairly serious problems with the way that AGCOM handled this.
- AGCOM declared the site guilty of “massive infringement” based on having just eleven movies. That seems like a ridiculously low threshold. Under such a threshold nearly any user-generated content site might be declared as engaging in “massive infringement.”
- Much is made of the claim that AGCOM tried to reach the operator of the site. They are required to try to communicate with the “website manager.” Since the operators of the site used a privacy guard feature from their Panamanian registrar for their Whois entry, AGCOM basically just reached out to that Panamanian registrar, and when there was no response, concluded that the site’s operators were ignoring the requests. While we can argue over whether or not the site should have provided a better means to communicate, it still seems fairly weak to argue that sending an email to a third party like that constitutes true notification of the complaint.
- Third, and most importantly, IPKat checked out the site and the eleven movies in question… and found that they all had been removed already. In other words, it seems fairly clear the site was perfectly amenable to a standard notice-and-takedown type of system, but AGCOM went all in and ordered the entire site blocked.
It’s entirely possible that the site had bad actors who were violating the law, but it certainly doesn’t look like AGCOM is being all that careful to make sure that’s the case, and that’s almost certainly going to lead to problematic results.