AGCOM Regulation Challenged before the Italian Constitutional Court: an Update

As we reported here, the Regional Administrative Tribunal of Lazio (TAR Lazio) referred the question of constitutionality of the AGCOM Regulation regarding Online Copyright Enforcement (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 case before the Italian Constitutional Court will be the first constitutional test for an administrative copyright enforcement scheme.  

The decision of the Italian Constitutional Court may take up to two years. Meanwhile, we managed to get a copy of the referral and thought of interest to share a summary in English of the ordinance with you. Actually, in referring the case to the Constitutional Court, the administrative court made some preliminary findings along the way. Below you find a break-down of the key points of the court's reasoning. 

(1) The associations for the defense of freedom of information as well as those representing web-tv, micro web-tv, micromedia hyperlocal, blogs and video blogs, information portals, aggregators and video companies active in the online press are entitled to challenge the AGCOM Regulation. 

(2) The AGCOM Regulation does not primarily enforce copyright but instead any failure to comply with an order of the Authority. Therefore, such an order cannot be considered illegitimate for (a) AGCOM's incompetence to introduce a para-judicial procedure to enforce copyright or (b) inconsistency between this procedure and the rules of law which entrust to the ordinary courts the enforcement of copyright, or even, for (c) breach of the principle of the "natural judge" in so far as judicial review of AGCOM measures is done by the administrative judge, rather than civil or criminal. 

(3) The AGCOM Regulation does not violate EU or national law in so far as it provides that its measures are directed only to hosting and access providers and not to uploaders and website operators. This is because EU and national law provide that ISPs may be subject to supervisory authorities' measures aimed at limiting the negative externalities of their activities (see Art. 8(3), Dir. 2001/29/EC and Art. 11, Dir. 2004/48/EC). 

(4) The AGCOM Regulation does not violate the adversarial principle in so far as it provides a very short deadline for the submission of counter-arguments. Actually, this principle governs criminal and civil proceedings, and possibly administrative proceedings of contentious nature. It does not apply to purely administrative proceedings, which are governed by the principle of "participation in the proceedings", which can be limited for reasons of urgency that the authority may identify. 

(5) However, the question of the constitutionality of Articles 5(1), 14(3), 15(2), and 16(3), Legislative Decree 70/2003 and Article 32bis(3), Legislative Decree 177/2005, on the basis of which the AGCOM Regulation was adopted,  "is not manifestly unfounded." Those provisions may infringe on (a) the principles of "statutory reserve" and judicial protection provided in defense of freedom of expression and economic initiative, as well as (b) the criteria of reasonableness and proportionality in the exercise of legislative discretion and (c) the principle of the natural judge, because of the lack of legal guarantees and judicial safeguards for the exercise of freedom of expression online, at least equivalent to those laid down for the press. 

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