In spite of an inflamed debate and strong opposition, as we have reported here and here, the Board of the Italian Communication Authority (AGCOM) approved its regulatory scheme for online copyright enforcement. The outgoing chairman of AGCOM hastily approved the scheme a few days before the new chairman was installed. The new regulation will allow AGCOM to administratively police copyright infringement online and will enter into force on March 31, 2014.
The scheme grants AGCOM broad enforcement powers and provides a variety of avenues for right-holder policing of copyright infringement. After implementation, right-holders will be able to file complaints for online copyright infringement with AGCOM’s Directorate by using an online form available on AGCOM’s website (art. 6). The administrative procedure before AGCOM will not target users (art. 2, par. 3). Instead, it will focus exclusively on service providers, uploaders of the infringing content, and website operators hosting infringing material (art. 7). The relevant parties will be informed that a procedure has been started against them and they will have the possibility to immediately comply with the right-holders’ request by removing or blocking access to the infringing materials (art. 7, par. 2-3). If the party receiving the notice decides to resist the right-holders’ requests, it must do so by presenting counterarguments within five days of receiving the notice. Special terms and deadlines may apply if AGCOM’s Directorate deems the case especially complex (art. 7, par. 5).
Decisions over the complaints will be taken by an AGCOM decision body, which will receive the results of the investigation from the Directorate (art. 8). If the collegial body is satisfied that the alleged infringement has occurred, it will adopt – within 35 days from the filing of the initial complaint – the following measures to prevent further infringement:
(1) if the infringing website is hosted in a server located in Italy, the decision body will order hosting service providers to selectively remove the infringing digital works; in case of massive copyright infringement, the decision body may order the service providers to disable access to infringing works, in lieu of the selective removal (art. 8, par. 3);
(2) if the infringing website is hosted outside Italy, the decision body will order mere conduit (Internet) service providers to block access to the website (art. 8, par. 4);
(3) in any event, when access to content or website is disabled, the service providers must automatically redirect users to a courtesy page, which will be set up according to AGCOM’s instructions (art. 8, par. 4).
Service providers must comply with these measures within three days. If, upon a discretionary evaluation of the Directorate, the case is deemed to be a severe infringement of the economic right of exploitation of a digital work or a massive violation, the procedural terms may be shortened (art. 9).
AGCOM’s administrative online copyright enforcement scheme is the first of its kind in Europe. It raises concerns from multiple perspectives.
Constitutional concerns have plagued the regulation since its proposal. AGCOM claims that the Legislative Decree N. 44 of March 15, 2010 provides a legal basis for the enactment of the new regulatory scheme. Italian constitutionalists and jurists have repeatedly noted that this may not be the case. The Legislative Decree 44/10 would not entrust AGCOM with this extent of enforcement powers that may collide with constitutional rights of users. AGCOM is adopting a regulation it arguably has no power to adopt and is therefore vesting itself with powers with no legal basis. Put bluntly, it should be left to the Parliament to adopt regulatory schemes impinging on fundamental rights.
Also, AGCOM is de facto depriving users of judicial review over online copyright infringement. Copyright holders will gladly use the administrative procedure before AGCOM, rather than seeking judicial redress. Although per the AGCOM regulation, the administrative procedure will be immediately interrupted if one of the parties involved initiates proceedings before the judicial authority (art. 7, par. 7), there may not be any strong incentive for service providers to do so. Indeed, the majority of cases will be decided through AGCOM’s administrative procedure. In this respect, users are deprived of the “necessary balancing of opposing fundamental rights” that the ECJ Advocate General has recently evoked in the Kino.to case for a blocking order to be proportionate under European Law. Given this proportionality requirement, it is hard to see how AGCOM’s blocking orders might pass muster under European law.
Besides legal concerns, the practical implementation of this regulatory scheme will be a challenge for AGCOM. It remains to be seen how the AGCOM will cope with the new, increased workload associated with administering the enforcement procedure. Personnel and economic resources appear wholly inadequate at the moment. AGCOM has suggested that it may seek the assistance of external research centers, which will raise concerns in terms of independency of the procedure.
Meanwhile, consumers’ associations already plan to challenge AGCOM’s regulatory scheme before the administrative tribunals. Additional challenges on constitutional and European law grounds may be expected as well. Also, Italian Government and Parliament are discussing copyright reforms that could make de facto irrelevant the newly approved regulatory scheme. All in all, AGCOM’s super-powers over online copyright enforcement may be short-lived or non-existent. And that may not be a bad thing.