Civil society has reacted negatively to the Italian Communication Authority (AGCOM) Proposal for an administrative system of online copyright enforcement. Approval of the regulatory scheme by AGCOM seems only a few weeks away, and discontent with the proposal is mounting. The Italian government and international organizations are siding with civil libertarians against a proposal that would constitute a unique arrangement among Western countries and dispossess courts from judicial review of findings of online copyright infringement and intermediary liability.
While visiting Italy to report on the state of freedom of expression in the country, Frank La Rue, the UN special rapporteur on the promotion and protection of the rights to freedom of opinion and expression, expressed his reservations against the new regulatory framework. La Rue, echoing the words of Italian academics and civil libertarians, especially Professor Marco Ricolfi, noted that “all norms regulating constitutional rights, in particular freedom of expression, should be approved by the Parliament.” AGCOM, La Rue opined, “has the power to adopt its own administrative regulations to the exclusive end of applying the present legal provisions.” The implementation of this new regulatory scheme by AGCOM would fall outside its prerogatives and – as many Italian constitutionalists and jurists have so far argued – cannot find a sustainable basis in any legal provision, although AGCOM may argue otherwise. Finally, La Rue stressed once again, in line with a position traditionally held by the European Union, that “removal of online content is a task to be demanded to the judicial authority.”
Members of the Italian Government and Parliament agreed. 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.
Besieged on multiple fronts, the President of AGCOM has reiterated his intention to proceed with the approval of the regulatory scheme. Further, he noted that the opponents to the proposal are either small groups of civil libertarians mistakenly perceiving the new regulation as a threat to civil liberties or accomplices of pirates that “fatten by reaping where other have sown.” In wondering to which category I may belong, I share the view of Frank La Rue and believe that online copyright enforcement should be left to judicial review and, in any event, it is up to the Parliament to come up with any regulatory scheme that may affect constitutional rights, such as freedom of expression.
Photo Credit: Francesca Minnone