At the end of September 2014, the Italian Regional Administrative Court of Lazio (Tar of Lazio) required the Constitutional Court to provide its judgment on the constitutionality of the Regulation on the protection of the copyright on electronic communications networks (hereinafter “regulation”), issued by the Italian Communication Regulatory Authority (hereinafter “Agcom”), and entered into force in march 2014.
The Regulation sets out the measures that Agcom may adopt in order to protect the copyright in electronic communication networks. The Regulation aims to encourage an effective legal offer of contents and to promote users access to those content. In addition, it states procedures to the establishment and termination of violation of copyright and related rights, carried out on electronic communications networks. The Regulation does not apply to end users of digital contents, and it does not impact on peer-to-peer applications. This Regulation does not limit the freedom of expression and information, but ensures the full guarantee of the rights of inform, comment, discuss and the educational and scientific purposes; and any use not adversely affecting the normal exploitation of the content. Moreover, it does not affect the legal interactions between the parties involved, providing adequate time to do so in their interests. The measures aims to protect the freedom of the network, because the procedure does not provide any measure of inhibition of access to Internet sites.
However, under this Regulation, Agcom may shut off access to web sites suspected of infringing copyrights.
Therefore, consumer’s associations filed action against this Regulation for violation of consumer rights, protected by the Italian Constitution, before the Regional Administrative Court of Lazio.
In accordance with the actions brought by consumer’s associations against the Regulation, 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.
The ruling of the Constitutional Court may affect the application of the Regulation. Therefore, in October 2014, the President of Agcom, Mr. Angelo Cardani, indicated that Agcom shall proceed “with caution” in the fight against online piracy, addressing only cases “of real urgency”, pending the case in the Constitutional Court.
Hence, on October 31, 2014, under the Regulation on the protection of the copyright on electronic communications networks, Agcom issued resolutions no. 118/14/csp and n. 119/14/csp in order to impose to mere conduit service providers, which operate on Italian territory, identified pursuant to article no. 14 of legislative decree 9 April 2003 no. 70, to disable the access to the web sites “mp3limon.info” and “mp3lemon.ws”.
For Agcom, these two websites, operated by Eranet International Limited (based in Russia) and Ecatel Ltd (based in Netherlands) provide Italian songs, protected by copyrights, in violation of Italian law no. 633/41. Therefore, under the rules set out by the Regulation and the principles of proportionality and adequacy, Agcom required mere conduit service providers to disable the access to those websites, because the servers hosting the websites are located abroad.