Friday 26 September 2014

Are blocking injunctions unconstitutional?

Upon claim brought by some consumer associations, an Italian Administrative Court ('TAR') has referred the system upon which the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright [on which see here] is based to the Constitutional Court, seeking clarification as to whether administrative blocking injunctions of websites are in line with some constitutional principles like freedom of expression, economic freedom and proportionality. Entered into force on 1 April 2014, the AGCOM Regulation allows AGCOM itself, without intervention of a judicial authority, to order the Italian mere conduits to block a website that is hosting infringing content after a very short administrative procedure. 

From the short extract of the decision that this blogger had the chance to read, however, it would appear that the TAR questioned the constitutionality of 14(3), 15(2) and 16(3) of the Legislative Decree No 70/2003. The latter transposed into the Italian system Articles 12(3), 13(2) and 14(3) of the E-Commerce Directive, which in turn allow "a court or administrative authority" to require mere conduits/caching/hosting providers to "terminate or prevent" infringements. As those provisions have been transposed in the Italian system almost litterally, what the Italian Constitutional Court could be called to consider, then, is whether and to which limits the whole E-Commerce Directive's system of notice and take down is in line with those three constitutional principles (freedom of speech, economic freedom and proportionality).

In Italy, 'TAR' stands for
"Tribunale Amministrativo Regionale"
This blogger bets that, when it comes to issue its decision, the Constitutional Court will suggest to strike a balance [perhaps one of the most abused expressions in the history of copyright law] between the fundamental rights that a disproportioned application of blocking injunctions could hamper and copyright protection, stressing that the latter, being a property right, also benefits of constitutional coverage -- like Article 17(2) of the Charter of Fundamental Rights of the EU says, etc.. 

But thinking out of mind the box: what if it will not be so? What if, eg, the Constitutional Court would say that the notice and take down system designed by the E-Commerce Directive is somehow in breach of constitutional rights that the Italian system protects as fundamental? How would the constitutionally-protected duty to comply with EU Directives match with the constitutionally-protected duty to guarantee the respect of fundamental rights such as freedom of speech and economic freedom? 

In a couple of decades [in line with Italian judiciary system's glorious timing tradition], the Constitutional Court will solve all these doubts -- and the 1709 Blog will be there to report. 


Anonymous said...

the court didn't questioned the Agcom regulation. The Court questioned two Italian laws.

Alberto Bellan said...

Yes, indeed, the Legislative Decree being one of them.