Italy Proposes Law To Make Mocking People Online Illegal

from the what-a-stupid-fucking-law dept

Every so often, we see (probably) well-intentioned, but incredibly stupid, attempts to “fight” online harassment and bullying through laws that make saying things that are “offensive” against the law. In the US, such laws (if they actually get passed) are usually thrown out once someone makes a First Amendment challenge over them, but elsewhere in the world there’s no First Amendment to fall back on. Over in Italy, some officials have proposed what may be one of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of “cyberbullying” it’s supposedly intended to combat:

Under the proposed law, the “site manager” of Italian media, including bloggers, newspapers and social networks would be obliged to censor “mockery” based on “the personal and social condition” of the victim — that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law — the standard is personal insult, not falsehood.

Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law — and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:

… what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.

As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.

The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.

There are some efforts under way to “improve” the law by making it not quite so draconian, but maybe, just maybe, the “improvement” should be to recognize that you’re never going to successfully outlaw mockery on the internet.

Filed Under: censorship, free speech, harassment, internet, italy, mocking, offensive, takedowns

Italian Court Realizes Ridiculousness Of Fining TripAdvisor Over User Reviews

from the well,-at-least-there's-that dept

Back in December, we wrote about a ridiculous situation in Italy, where the site TripAdvisor was fined €500,000 by local regulators because it wasn’t magically stopping people from posting “false reviews” on the site. As we noted at the time, it’s stories like this that show why, here in the US, Section 230 of the CDA is so important. It makes it clear that you don’t blame a third-party website for actions of its users. What the regulators were demanding was an impossibility. There is no realistic way for a user review site to make sure all the reviews are legit, at least not if it wants to allow user reviews, rather than hiring staff to do every review.

Thankfully, an Italian court has now overturned the fine and acknowledged that it was ridiculous in the first place. Rather than focusing on the problems of intermediary liability, the court just notes that TripAdvisor never made any promises that the reviews were accurate:

?TripAdvisor never asserted that all its reviews were true, pointing out instead that it is impossible to exercise a blanket control and inviting users to consider ?trends? in the reviews rather than single contributions,? the court said. ?We do not understand the harm to the consumer identified by the Authority in its concluding arguments.?

That’s good, though apparently a ridiculous counterproductive group called the National Consumers Union who brought the complaint in the first place wants to keep pressing the issue:

The National Consumers Union remained unconvinced, saying it intended to appeal the court?s ?crude thesis.?

?We recognize that controlling on the Web may be more complicated than in a physical market, but the law and supervisory activity cannot remain permanently two steps behind current progress,? Massimiliano Dona, the union?s secretary, said in a statement.

This, of course, makes no sense. It’s an argument for not the internet, in which anyone can express an opinion, but rather a top-down broadcast system, in which any statement must first be vetted. That would, effectively, destroy much of the power of the internet. It’s hard to see how that helps “consumers” in Italy at all.

Filed Under: intermediary liability, italy, reviews, user generated content
Companies: tripadvisor

Italian Regulators Fine TripAdvisor For Not Sniffing Out Every Single Fake Review On The Site

from the thank-goodness-for-section-230 dept

We’ve talked quite a bit about the importance of Section 230 of the CDA in the US, and how it protects internet sites from the actions of their users. Some have tried to downplay the importance of Section 230, arguing that it goes too far in protecting bad behavior, or even arguing that it has little impact on innovation. Yet, take a look at the situation in Italy, where regulators are now fining TripAdvisor because some people put up fake reviews on the site:

The American company, which allows travelers to rate hotels and restaurants around the world, has been fined 500,000 euros, or about $610,000, by an Italian regulator for not doing enough to prevent false reviews on its site.

The fine represents one of the first times that a review site has faced financial penalties in Europe or the United States for failing to clamp down on potentially false reviews.

The regulator, the Italian Competition Authority, called on TripAdvisor to stop ?publishing misleading information about the sources of its reviews,? and gave the company 90 days to comply with the ruling.

Except, of course, it’s not TripAdvisor “publishing” the “misleading information.” It’s TripAdvisor’s users. This is the key point that we’ve made about Section 230: that it forces people to recognize the difference between a site and its users. In the past, we’ve even noted that we shouldn’t even need a Section 230 because it should be common sense that you don’t blame a site for the actions of its users — but seeing how frequently people do that, the importance of Section 230 is quickly obvious.

TripAdvisor says it’s going to appeal the decision — as it should. Otherwise, it makes you wonder if TripAdvisor should bother doing business in Italy at all. And that would be a real shame. Just last year I visited Italy, and TripAdvisor was tremendously helpful in picking the hotel where I stayed (which turned out to be wonderful). Blaming and fining the site because some people misuse it seems like setting a really dangerous precedent.

Filed Under: competition, fake reviews, italy, regulators, reviews, section 230
Companies: tripadvisor

Consumer Organizations And Internet Companies Mount Legal Challenge To Italy's Extreme Copyright Enforcement Regulations

from the fightback-time dept

Techdirt has been following for a while the saga of Italy giving its Authority for Communications Guarantees (AGCOM), which regulates broadcasting and telecommunications, wide-ranging new powers to police online copyright infringement too. That culminated in the first instances of Web sites being blocked without any kind of judicial review earlier this year. Since then, there has been an important development as civil organizations and Internet companies have mounted a legal challenge to the new regulations. One of the lawyers involved in these actions, Fulvio Sarzana, explains what happened:

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

Here’s why:

the Regional Administrative Court of Lazio required the Constitutional Court to issued its judgment, since it held that the regulation might be unconstitutional, for violation of the principles of statute and judicial protection in relation to the exercise of freedom of expression and economic initiative, as well as for the violation of criteria of reasonableness and proportionality in the exercise of legislative discretion and of the principle of the court, in relation to the lack of guarantees and legal safeguards for the exercise of freedom of expression on the Internet.

Given that the constitutionality of the copyright regulations is in question, consumer and business organizations — Altroconsumo, Movimento di difesa del Cittadino and Assoprovider — have sent a formal request to AGCOM asking for the whole approach to be suspended until a decision is handed down. They argue that this is necessary in order to avoid the high costs that AGCOM would incur from being sued by those who have had their sites shut down, in the event that the regulations are found unconstitutional (original in Italian.)

AGCOM has refused to suspend the regulations completely, but it has slowed down the pace of its actions, as Sarzana notes:

in October 2014, the President of Agcom, Mr. Angelo Cardani, indicated that Agcom shall proceed “with caution” , addressing only cases “of real urgency”, pending the case in the Constitutional Court.

Although hardly satisfactory, that does show that even AGCOM realizes that there is a possibility its days of unbridled power to censor sites are numbered. Let’s hope so.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: agcom, constitutionality, copyright, enforcement, italy, legal challenge

Italian Court Acquits Scientists Of Manslaughter Charges Incurred After Failing To Predict Deadly Earthquake

from the pitchforks-and-courtrooms dept

It seemed like something from The Onion… or Monty Python: scientists jailed for not predicting the 2009 earthquake in L’Aquila, Italy. Because their risk assessment delivered six days before the quake “failed” to prevent the earthquake from occurring, Judge Marco Billi decided all six scientists were guilty of manslaughter due to their “superficial, approximate and generic” analysis. They weren’t held responsible for all 300+ deaths, but specifically for the 29 deaths of people who stayed in their homes (rather than venturing out) because they believed there was “no risk” of an earthquake.

Some sanity has finally prevailed, over three years since the post-earthquake insanity struck. [h/t to Techdirt reader wereisjessicahyde]

Six seismologists accused of misleading the public about the risk of an earthquake in Italy were cleared of manslaughter on 10 November. An appeals court overturned their six-year prison sentences and reduced to two years the sentence for a government official who had been convicted with them.

We’ll get back to that last sentence in a moment, but let us first note that sanity hasn’t completely prevailed.

The finding by a three-judge appeals court prompted many L’Aquila citizens who were waiting outside the courtroom to react with rage, shouting “shame” and saying that the Italian state had just acquitted itself, local media reported.

Sure, this could have the appearance of a government body (the National Commission for the Forecast and Prevention of Major Risks) getting an assist from another government body (the court system — the same court system, mind you, that two years earlier convicted these witches scientists of manslaughter), but it isn’t. It’s the return to a better, simpler time when scientists weren’t charged with criminal activities simply for providing risk analysis.

Now, back to the sentence that wasn’t overturned.

The government official still doing hard time is Bernardo De Bernardinis, (then) deputy director of the Italian Civil Protection Dept. Apparently, the panel of judges considered his interpretation of the scientists’ risk analysis to carry a bit more culpability. This could be because his interpretation of the scientists’ assessment (“We showed a map where L’Aquila is purple, which means the highest hazard”) was inexplicably much, much cheerier (“The scientific community tells me there is no danger because there is an ongoing discharge of energy”). As it stands now, De Bernardinis has had 16 charges of manslaughter dismissed, but is still working off the other 13.

Nature notes that, because it might take up to three months for the verdict to be published, we don’t really know the rationale behind the acquittals. One would hope the reasoning runs along the lines of “to allow these convictions to stand would be batshit crazy, not to mention a latent threat to scientists all over our country.” One of the scientists acquitted noted that it appeared the panel of judges agreed no crime had actually been committed — which is basically the same thing as above, presumably with more legalese.

And, of course, this is a judicial system so it must be noted that these acquittals can be appealed and Italy may find itself locking up scientists again, much to the general aghastness of everyone.

Filed Under: earthquake, italy, lawsuits, liability, predictions

Italian Parliament Publishes Draft Internet Bill Of Rights

from the who's-next? dept

For several years, Techdirt covered the twists and turns of the “Marco Civil” saga, Brazil’s bill of rights for the Internet, which finally passed back in March. Rather depressingly, this welcome move seemed to be something of a one-off, but now the Italian Parliament has announced its own draft bill of rights. Here’s the introduction (original in Italian — pdf):

The Internet has contributed decisively to the redefinition of both the private and public space, to structure the relationships between people and between people and institutions. It has cancelled borders and built new means of production and the use of knowledge. It has expanded the possibilities for direct intervention in the public sphere by individuals. It has modified the organization of work. It has allowed the development of a more open and free society. The Internet should be considered as a global resource and one that meets the criterion of universality.

The European Union is today the region of the world with the highest constitutional protection for personal data, explicitly recognized by Article 8 of the Charter of Fundamental Rights, which is the point of reference for specifying principles concerning the operation of the Internet, even in a global context.

This Statement of Rights on the Internet is based upon the full recognition of freedom, equality, dignity and diversity of each person. The guarantee of these rights is a necessary condition for ensuring the democratic functioning of institutions, and in order to avoid the dominance of public and private powers that could lead to a society of surveillance, control and social selection.

The Internet is configured as an increasingly-important space for the self-organization of individuals and groups, and as a vital tool for promoting individual and collective participation in democratic processes and meaningful equality.

The principles regarding the Internet also take account of its structure as an economic space that makes possible innovation, fair competition and growth in a democratic context.

A Declaration of Rights for the Internet is an essential tool to provide a constitutional foundation for principles and rights at a supranational level.

There then follow 14 digital rights, including things like basic human rights; right to access the Net; Net neutrality; control of personal data online; protection against surveillance without the approval of a judge; right to online anonymity; and the right to be forgotten.

The present document is just a draft, and input will be gathered from many quarters, including the public, who can make comments and suggestions using an online system. That’s only in Italian, for understandable reasons, but it would be good if translations into other major languages were made to allow an even wider consultation [Update: English and French drafts of just the text are available.] After all, a bill of rights for the Internet is something that concerns everyone, not just citizens of enlightened nations like Brazil and Italy.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: bill of rights, brazil, internet, internet rights, italy, marco civil

Italy's Public Prosecutor 'Seizes' Giant Webmail Provider And Cloud Storage Provider, Because Copyright

from the such-is-the-internet dept

We’ve been highlighting how Italy’s public prosecutor has suddenly decided that he gets to be the judge, jury and executioner of any websites he deems to be engaged in copyright infringement. Back in March he ordered dozens of websites to be censored based entirely on his say so. And now he’s back with another big list, except this time it includes two very big names: Russian webmail/social networking giant mail.ru and Kim Dotcom’s cloud storage provider Mega.nz. No matter what you might think of Kim Dotcom and Megaupload, Mega.nz was clearly set up to be quite different from Megaupload — and the company is known for being quite responsive to takedown requests.

As for mail.ru, it’s owned by Russian oligarch Alisher Usmanov, who (not surprisingly) is a pal of Vladimir Putin. The company put out a statement in which it says it was not informed about any of this and only found out once its users in Italy started complaining. The company is not happy about the situation. “[Eyemoon Pictures] made no attempt to resolve the situation pretrial…. No notification of illegal content or requirements to remove copies of [Eyemoon’s] films has been addressed to Mail.Ru Group from law enforcement agencies and Italy.”

Fulvio Sarzana, an Italian lawyer who follows these things (and first alerted us to the news) is claiming that these sites have been “seized” by the Italian government. In this context, Sarzana explained via email, the government technically is “seizing” the site, but since they have no actual ability to do so, they order ISPs to block access to them.

The decision came after an Italian film distributor complained that two movies — that have not yet been released in Italy — could be found on these sites. But, they could just as easily discover that someone had uploaded such films to YouTube or Dropbox or Amazon’s S3 or Gmail. Would the public prosecutor order all of those sites completely blocked with no adversarial hearing whatsoever? If prosecutors in Italy truly believe that these entire sites should be “seized” or blocked in Italy, why not take them to court and hold a trial? Why jump immediately to a complete shutdown of sites used by millions for perfectly legitimate activity, just because someone was able to find two infringing files? The chilling effects in Italy from this kind of activity should be massive. It would appear to make it absolutely impossible to build any kind of internet company that allows any form of user generated content, because on a whim, the government might seize everything.

Filed Under: blocking, censorship, copyright, isps, italy, kim dotcom, public prosecutor, seized, websites
Companies: mail.ru, mega.nz

US Government Praises Italy For Implementing SOPA Features The US Public Vehemently Rejected

from the questions-to-ask dept

It’s no secret that the USTR has been pushing for copyright maximalist policies over the past few years (mostly done by a guy who recently went through the revolving door to become an MPAA lobbyist). However, one thing they keep claiming is that they’re only looking to get other countries to match existing US laws, rather than expand them. That’s clearly untrue if you look through the actual language being negotiated (only available via leaks). But, even so, it’s pretty clear that the USTR is pushing an extreme maximalist approach. Last week, it released its latest Special 301 report, in which it names which countries are “naughty” about intellectual property. “Naughty” is not defined by any objective standard. Rather, the USTR asks various industry lobbyists to tell them which countries they dislike the most, and the USTR rewrites it into the list. The Special 301 process has long been a complete joke that even many maximalists recognize as silly (we heard the former head of the US Copyright Office once mock it).

The latest version of the report is more of what we’ve come to expect in previous reports. China has been naughty. India and Spain have been called out of class for a special extra review. Blah blah blah. But, it also notes that both Italy and the Philippines were removed from the Watch List “in recognition of their intellectual property rights accomplishments.” Both countries have certainly become much more aggressive on copyrights recently — and they’ve done so by being a lot more aggressive than the US. In fact, as we’ve been reporting, Italy made a dangerous move to allow an administrative agency to issue censorship bans on websites without any judicial process. And, in fact, it’s already begun issuing questionable death sentences on sites, forcing ISPs to block access.

If this sounds like the approach originally considered in SOPA (actually, it’s going even further than that), that was then massively rejected by the public, you’d be exactly right. So you would think that the USTR would, perhaps, chastise Italy for such an abuse of intellectual property for censorship in a manner that the American public (who the USTR is supposed to represent) have rejected. But, nope. The USTR praises this very approach:

Italy is removed from the Watch List in the 2014 Special 301 Report in recognition of the Italian Communications Regulatory Authority’s (AGCOM) adoption, on December 12, 2013, of long-awaited regulations to combat copyright piracy over the Internet.

In other words, here you have the USTR basically admitting that it approves of countries moving to an approach even more extreme than SOPA. Of course, the reality here is pretty transparent. If Italy and others implement SOPA, down the road, it can be negotiated into various international agreements, so that the US will claim that it has to implement SOPA to “comply with our international obligations.” It’s been done before. That’s exactly how we got the DMCA. Congress initially rejected it, and so Bruce Lehman specifically went to WIPO to get the DMCA put into the 1996 Copyright Treaty… and, voila, two years later Congress said it had to pass the DMCA to comply with that treaty.

The USTR has long been a supporter of maximalist policies. Praising Italy for implementing an even more extreme version of SOPA just highlights how little concern the USTR has for the interests of the American public. Instead, it appears almost entirely focused on the interests of the most powerful lobbyists (who, not surprisingly, are also the USTR employees’ likely future employers).

Filed Under: agcom, censorship, copyright, injunctions, italy, sopa, ustr

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.

1. 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.”
2. 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.
3. 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.

Filed Under: administrative review, agcom, censorship, copyright, injunction, italy, takedown

Italian Officials Claim American Gun Ad Featuring Michelangelo's David Is 'Illegal'

from the but-is-it? dept

Somehow the word “copyright” is being thrown around in relation to a 500-year-old statue. Any reasonable person would assume the word “copyright” shouldn’t come within 350 years of any creation, but that’s how the story’s being presented. (h/t to Techdirt reader WulfTheSaxon)

Italy’s culture minister has expressed outrage over an advertisement by a US weapons firm showing Michelangelo’s David holding a rifle. Dario Franceschini said the image was offensive and violated the law.

A number of Italian media web sites carried the image of the advertisement showing David holding a bolt-action rifle. The advertisement, from Illinois-based ArmaLite, carries the line “a work of art” in promoting the $3,000 rifle. Mr Franceschini urged the company to withdraw the advertisement for the AR-50A1.

He said in a tweet: “The image of David, armed, offends and infringes the law. We will take action against the American company so that it immediately withdraws its campaign.”

First off, the ad itself is over a year old, as Sara Morrison at The Wire points out. The ad was originally tweeted by Armalite back in May of 2013. This ad, however, was only recently published in Italy, hence the sudden outrage.

AR-50A1: A WORK OF ART! http://t.co/iITCN2qKnh pic.twitter.com/wr2yTnLhve

— ArmaLite Inc. (@ArmaLiteInc) May 15, 2013

Now, as for the claim of copyright… that doesn’t seem to be exactly what’s being claimed here. (And, indeed, none of the officials quoted actually use the word “copyright,” instead claiming the ad “distorts” the original work. That term is deployed solely by reporting on the event.) The country of Italy “owns” Michelangelo’s statue of David (finished in 1504), although the piece itself resides in Florence, a claim not without its own controversy. (Italy claimed the statue in 2010, something that enraged Florence officials who firmly believed that statue belonged to the city that had hosted it since its completion.)

What Italian officials actually seem to be claiming is control over use of images of the sculpture, which is adjacent to copyright, but not entirely the same thing.

Cristina Acidini, Florence superintendent for history and fine arts, condemned the company’s use of the image and also urged ArmaLite to immediately withdraw it.

“To use a work of art from any of the Florence museums for promotional purposes, it is necessary to obtain an evaluation of how the image may be used,” Miss Acidini said. “No-one ever agreed to that.”

What’s being stated here sounds more like publicity rights. Florence officials are seeking to control use of David’s “image” in advertising. (“Image” in this case being the collective perception of a cultural icon, rather than a photograph.) Italy may technically “own” the sculpture (as much as anyone can “own” a cultural icon), but it can’t claim to control the copyright, which has long since expired. (And that’s even under Italy’s restrictive laws which make no allowances for fair use and include dubious “moral rights” as part of the copyright package.)

So, Florence effectively controls use of images (photos) of the sculpture, and is trying to assert some form of publicity rights on behalf of a statue. It can’t lock anyone out from producing their own David sculptures, but what museum officials have done instead is prevent anyone from producing their own images. The museum has a strict “no photography” policy which means that any photos of David are controlled by the museum. (There doesn’t seem to any similar policy restricting photography of the replica located elsewhere in Florence.) In this fashion, Florence officials can seek to control of David’s use in commercial works via copyright law, even if what’s being detailed here seems to rely more on outrage over “distorting” the sculpture’s iconic status than any true legal basis.

But this assertion of control over a cultural icon is still specious, as even the Florence superintendent of fine arts seems to realize. As Cristina Acidini says at ilpost.com, it’s an “international event” but “I cannot, of course, send the FBI after Armalite.” Instead, she intends to use the court of public opinion to render a verdict in the museum’s favor and shame ArmaLite into dumping the ad.

“But I intend to use all the possibilities of reaction… starting with the ‘moral persuasion’ and scandal in the newspapers.”

So, what we have is a copyright-esque assertion being used to shame a gun manufacturer into dropping an ad that has offended cultural sensibilities halfway around the world (ArmaLite is based in Illinois). At the center of it all is a 500-year-old sculpture currently in the public domain, but controlled by “adjacent” copyright measures. In the end, all these Italian officials have is their offended sensibilities, which really isn’t enough to justify their demands.

Filed Under: copyright, david, italy, michelangelo, publicity rights
Companies: armalite