On March 30, 2017, the Regional Administrative Court of Lazio has put an end to the proceeding started to challenge the “Regulation on copyright protection on electronic communications networks” (the “Regulation”) - issued on December 12, 2013, by the Italian Regulatory Authority on Communications (AGCOM) - rejecting the complaint lodged on 2014 by different stakeholders such as consumers and ISP associations.
Immediately after its publication, much of criticism was raised, hence the challenge of the Regulation was no surprise for copyright lawyers in Italy.
Briefly, the Regulation introduced an alternative procedure, shaped on the E-Commerce Directive principles, due to be faster and cost effective compared to judicial remedies to fight online copyright infringements. Such procedure starts with the petition of the right holder requesting AGCOM to remove a digital content. The authority can dismiss it, if it considers the petition to be lacking of grounds or inadmissible, prima facie; otherwise, AGCOM opens the proceeding and formally informs the Internet Service Provider (ISP), the website manager and the uploader, if traceable, within seven days from the date of the petition.
The ISP, website manager and uploader may spontaneously remove the content, thus closing the proceeding; should it not be the case, they have the right to rebut within five days from the AGCOM notice. Upon expiration of this deadline, a collegial body will be in charge of the dismissal of the case or of the adoption of measures.
The relevant measures are directly addressed to the ISP and they vary on the basis of the server location. In particular, in case of foreign websites, the Regulation provides that when the server is located in the Italian territory, the collegial body will order, to the hosting provider, the selective removal of contents; in the case of a mass violation, instead of the removal, AGCOM can order the disabling of the access to the webpage. But if the server is located abroad, the collegial body will order to the mere conduit providers based in the Italian Territory to disable the access of Italian users to the webpage or to the website.
Finally, AGCOM may also order the service provider to automatically redirect the requests of access to the infringing websites to a webpage created pursuant its instructions in order to inform the public of the proceeding.
Since when the Regulation took effects in Italy, AGCOM has received 729 complaints; out of them, 424 have been processed by the authority and 277 ended with the disabling of the access to a website.
As a matter of fact, in the case of infringement of copyrights and neighbouring rights, the following remedies are now available in Italy, depending on the circumstances:
- sending a cease and desist letter to the ISP or the website manager; this action would trigger
ISP liability in accordance with the E-Commerce Directive principles;
- starting a proceeding before AGCOM asking the removal of the content or the disabling of the access to the webpage, according to the Regulation;
- starting judicial proceedings, also seeking injunctive relief, to obtain the removal or the disabling of the access to the webpage, when, due its complexity, the matter involved a more thorough assessment;
Many objections have been raised with aim of having the Regulation declared invalid, but the Regional Administrative Court of Lazio recognised that:
- AGCOM is fully legitimated to exercise its regulatory and supervisory powers on copyright;
- these powers can be exercised simultaneously to those attributed to the judicial authority;
- the exercise of powers provided by the Regulation is not in contrast with the Italian Constitution;
- the costs related to the removal of contents and to the block of websites cannot be put onto right holders;
- the Regulation complies with the principles of the E-Commerce Directive;
- the Regulation respects the principles of proportionality and ensures guarantees to the subject of the administrative measure.
According to the Administrative Court, the Italian legal framework confirms the regulatory and supervisory powers exercised by AGCOM in respect of service providers. This power can be exercised also through remedies aiming at the reduction of copyright infringements and which are alternative to the judicial remedy.
Moreover, the Court has specified that the Regulation is functional to the protection of copyright and, for this reason, it represents an important instrument to defend constitutional values, in particular, those affirmed under article 21 and 41 of the Italian Constitution related to the freedom of expression and freedom to entrepreneurship.
This ruling will have positive effects increasing the level of trust in digital services of consumers and businesses which can rely on an important instrument against online piracy, different from the traditional protection granted by the judicial remedies.
However, the matter is not over yet. In the next future, the ruling of the Regional Administrative Court of Lazio will be probably appealed and it will be necessary to wait the new ruling of the State Council - the Italian Supreme Administrative Court – in order to understand whether the validity if the AGCOM Regulation will ultimately be acknowledged.