The so-called ‘Centemero law’ – proposed recently in Italy and named after the MP who tabled it- would appear to put ISPs under a duty of care to filter for the purpose of enforcing copyright. On the basis of an English translation, the Italian proposal would put ISPs under an onerous obligation which would radically alter the Italian implementation of the E-commerce directive ‘mere conduit’. Indeed, it would reverse mere conduit. And it would be the most draconian, if unimplementable, copyright enforcement law in Europe.
A draft of the proposed new copyright law was tabled in the Italian Parliament last month. It is becoming known in Italy as the Centemero law – after the MP who tabled it, Elena Centemero . Signora Centemero is a member of the European Affairs committee in the Italian Parliament.
Just for good measure, the same draft, word for word, was also tabled by another Italian MP, Giovanni Fava.
Signora Centemero's proposal attacks ‘mere conduit’ in a very simple way. It says that ISPs retain the exemption of liability entailed in ‘mere conduit’ BUT the exemption does not apply in cases where the ISP has failed to comply with a duty of care. That duty of care is defined in the draft Centemero law as the identification and prevention of certain illegal activities, and in particular to prevent the violation of of industrial property rights.
The draft states only industrial property rights, but the preamble mentions P2P and copyright. It is assumed that the Centemero law intends to target copyright.
The draft Centemero law specifies the ways in which the ISPs are to comply with that duty of care. This entails ‘the adoption of filters’. (Article 17.4 c)
The ‘filters’ are required to be ‘technically capable of ‘not enabling access to’ a range of web services. Those services include search engine links and other forms of keyword marketing, information published websites, and individual users access.
Moreover, the proposed Centemero law would seem to open the path to an administrative authority - responsible for enforcing copyright - being able to order such filtering, although it does not provide for one to be set up. And it would appear to violate privacy law, with a requirement for ISPs to divluge personal data. (Article 17.2b)
As I said in my previous article, Italy tables ‘basket case’ anti-download law it looks like the whole shopping basket of rights-holder wishes for copyright enforcement has been thrown into the draft proposal, without any thought as to how it could be implemented – and without any consideration of the Constitutional implications, or fundamental rights.
However, Signora Centemero's proposal has a long way to go before it would actually become law. It seems that the proposed Centemero law has been thrown out once before and the rights-holders are having another go. I cannot see how it can pass muster when it is so clearly breaching fundamental principles of European law.
This is the translation on which I am relying, supplied by Pete Carroll
(NB The reference to a DMCA-style notice and takedown would apply to the proposed Article 16. I am commenting on the ISP liability measures in Article 17).
4. In any case, the exemptions and exceptions to liability under the this Decree do not apply to:
c) the provider has not complied with the duty of care which it is reasonable to expect from it and that is expected by law in order to identify and prevent certain types of illegal activities. Specifically, pursuant to Legislative Decree 10 February 2005 No 30, in order to prevent the violation of industrial property rights, this duty of care includes inter alia:
the adoption of measures to facilitate the identification of recipients of its services that are acting commercially;
the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services, such as information containing key words, that in normal commercial use, usually indicate that the products or services to which they that apply are not original, used alone or in conjunction with a trade mark or distinctive description to which the service recipient has not proven that they are the owner or the licensee;
the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services whose description matches the description of counterfeit products or services,which holders of industrial property rights relating thereto have previously communicated to the service provider;
the use of these filters before the information is put online, the publicationon the site of the service provider, in a clear and visible way, of the exclusionary rules, the suspension of the use of the services by service recipients that bring into question infringement of industrial property rights in order to avoid new infringements of the same kind being committed by the same parties.
In order to prevent violation of the regulations related to the marketing of goods or services subject to legal restrictions in their sale or supply, such a duty of care includes inter alia:
the adoption of filters that are technically capable of not enabling access to information aimed at promoting or otherwise facilitating the marketing of products or services whose marketing is reserved to particular sales or supply channels or requires a medical prescription;
the use of these filters before the information is put online, the publication on the site of the service provider, in a clear and visible way, of the exclusionary rules,
Please attribute this article: Monica Horten (2011) Italy's Centemero law would give ISPs a duty to filter 13 October 2011.