By order issued on September 26th 2014, n. 10020, the Regional Administrative Court of Lazio (hereinafter, “TAR”) has expressed doubts about the constitutionality of the regulation by which AGCOM has intervened, for the first time, for copyright protection on electronic communications networks.
The above-mentioned regulation has been appealed before the TAR by some associations, such as, among the others, Altroconsumo, Assoprovider, Movimento Difesa del Cittadino and Assintel - Confcommercio, which have pointed out that the AGCOM has not the power to carry out repressive administrative disciplinary action in a matter which the law, and before that Constitution and European law, reserves to the jurisdiction of the ordinary judge in order to protect the freedom of expression and economic competition.
Although the TAR has considered the appeal filed by said associations unfounded, it has noted that the copyright, as potential specification of the Constitutional right to private property (art. 42 of the Italian Constitution), must be balanced with the fundamental rights provided by the same Constitution and, in particular, among others, with the right to free information of the website operator, of the internet provider and the audiovisual media services supplier, and every person’s right to have access to free information in the network, the right of traders to carry out their activities on the network and the right to privacy of interpersonal communication.
The TAR, in fact, has recognized that AGCOM has correctly interpreted and implemented the laws which give it the role and powers of “vigilant administration” in the field of copyright and has complied with the criteria of reasonableness and proportionality exercising its power of vigilant administration, disciplining a procedure which, while characterized by urgency, ensures full participation of interested parties. Nevertheless, as already said, before rejecting the appeal, the TAR has considered appropriate to examine whether primary legislation is compatible with the Constitution and has remitted to the Constitutional Court the question of the legitimacy of such laws.
The TAR has, therefore, asked the Constitutional Court to rule on the unconstitutionality of art. 5, paragraph 1, and articles 14, paragraph 3, 15, paragraph 2, and 16, paragraph 3, of Legislative Decree April 9th 2003, n. 70, as well as of paragraph 3 of article 32 bis of the Consolidated Law of audiovisual and radio media services, approved by Legislative Decree n. 117 of 2005, as introduced by art. 6 of Legislative Decree n. 44 of 2010, on the basis of which was adopted the contested “Resolution no. 680/13 /CONS of December 12th, 2013”, containing the “Regulation on the copyright protection on electronic communications networks and implementing procedures” and the “Annex A”, attached to the said Resolution, for the violation of the principles of legal reserve and judicial protection in relation to the exercise of freedom of expression and economic initiative, set out in Articles 2, 21, paragraph I, 24 and 41 of the Constitution, as well as for the violation of the criteria of reasonableness and proportionality in the exercise of legislative discretion and for the violation of the principle of the court, in relation to the lack of provisions for guarantees and legal safeguards for the exercise of freedom of expression on electronic communication network at least equivalent to those set out for the press, with the consequent violation of articles 21, paragraphs 2 and following, 24 and 25, paragraph 1, of the Constitution.