What is the real objective of this proposed Italian copyright enforcement law? Is there a hidden attack on the E-commerce directive?
A proposed new law in Italy threatens to reverse the E-commerce directive and ask ISPs to filter all content for copyright enforcement purposes. Without any subtelty at all, the proposed law attacks all the core principles of the Internet, not to mention freedom of expression and other fundamental rights such as privacy and due process. Its structure is very simple, but in terms of its content, it contains the entire basket of measures which the rights-holders are asking for all around Europe and in Brussels.
However, it does not look to me as though it has been written with any real possibility of implementation. It is not a 3-strikes law. If that were the aim, you would expect it to be differently structured. Similarly, for web blocking web blocking measures.
However, before you smile and say ‘that’s ok then’ – now for the bad news. It actually tries to go a step further than 3-strikes. In a nutshell, the proposed Italian law says that ISPs retain 'mere conduit' status and are not under any obligation to monitor user traffic, but if they permit access to infringing content, they will be held liable.
The law says that in order to prevent such access to infringing content, the ISPs should filter (and it actually uses the word ‘filtri’ – to filter). It also imposes a simlar requirement onto web host companies, and it will apply to trademarks and patents as well as copyright.
In other words, the ISPs are not being asked to monitor, but the effect will be that if they don’t do it, they will be liable to being sued. So, their default will have to be monitor. This is a total reversal of the principle in the E-commerce directive – something which the rights-holders have had in their sights for some time.
It would violate Article 1.3a of the Framework directive, which requires a prior, fair and impartial hearing before any blocking measures may be implemented. This proposed law clearly does not even think about fundamental rights.
The measures entailed in the law would further contravene privacy law on several counts.
Moreover, the ECJ ruling in the Sabam v Scarlet case stated clearly that filtering was in violation of fundamental rights, and this law fails to even mention the case in its preamble.
The proposed law, which has been tabled twice to the Italian Parliament by two different MPs, has been fast-tracked to a Committee for scrutiny in the near future.
The law was tabled on July 14th by one MP (named Fava) and on July 27 by another MP named Cenemero. According to sources in Italy, the two tabled documents are almost word for word the same.
It makes me wonder who is really behind the law and what their objective is. There could be two possible aims. One would be to to pressure the Italian government - ie this is unworkable, and so bad that Italians will feel obligated to something else a bit less harsh, that can be implemented. It has been suggested to me that there are some unpopular rules which are about to be implemented on notice and take-down, and this could be designed to lean on opponents.
Or it could be intended to put pressure on the European Commission to open up the E-commerce directive.
We should bear in mind that the US government has put Italy on the Special 301 Watchlist and will be working with the Italians to revise their enforcement law.
Overall, it looks to me like someone threw their desired ingredients into the copyright enforcement shopping basket – and cooked up a basket-case of a law.
Please attribute this article: Monica Horten (2011) Italy tables ‘basket case’ anti-download law http://www.iptegrity.com 21 September 2011.