Italian Constitutional Court Rejects Appeal Against Administrative Copyright Enforcement

The Italian Constitutional Court rejected the appeal challenging the constitutionality of the AGCOM Regulation regarding Online Copyright Enforcement (AGCOM Regulation). As we reported here, in September 2014, the Regional Administrative Tribunal of Lazio (TAR Lazio) referred the question of constitutionality of the AGCOM Regulation to the Italian Constitutional Court. The Regulation empowers the Italian Communication Authority (AGCOM) to administratively enforce copyright infringement by ordering online intermediaries to block allegedly infringing websites.

The Constitutional Court deemed the motivations of the referral "contradictory, ambiguous and obscure," thus rejecting the appeal as inadmissible. In particular, the referral did not mention whether the Constitutional Court was requested to quash or modify the provisions, whose constitutionality was challenged. These technicalities precluded the Court from deciding the merits. As the Court explains:

Each contested provisions has a content sometimes more restricted and sometimes more extended than the object of the Regulation. Since the Constitutional Court rules on norms but decides on provisions, a decision granting the appeal would not have the effect desired by the referring court but would ultimately expunge from the legal system provisions concerning either substantive aspects of the electronic communications regulation or the attribution to AGCOM of functions and powers that must be awarded according to European law.

Therefore, the decision does not dig into the thorny issue of the fair balance between users' right to free flow of information, intermediaries' freedom of business and copyrightholders' property rights. In particular, the Constitutional Court does not directly touch upon due process rights and whether the administrative procedure before AGCOM fulfils constitutionally mandated due process guarantees. Nonetheless, the Court mentioned in passing that the contested provisions do not directly grant regulatory powers to AGCOM to administratively enforce online copyright infringement, as the referring court seemed to imply:

regardless of any consideration concerning the accuracy of the reconstruction and interpretation of the legal framework given by the referring court, it is clear that none of the contested provisions as such specifically provide for the attribution to the supervisory authority [AGCOM] of a regulatory power such as that exercised with the approval of the Regulation challenged before the Administrative Court. This power is implied by the referring court by virtue of the combined reading of the abovementioned provisions, which is not consistently or otherwise properly supported.

It is now again for the administrative courts, and perhaps for the Consiglio di Stato, the highest court in the Italian adminstrative system, to decide upon the legitimacy of the AGCOM Regulation.

The full text of the decision can be found here (Italian only).