Towards an Italian SOPA?

A few weeks ago, two bills, aiming at modifying the Italian regulation on e-commerce, following a long-running battle over ISPs liability, have been submitted to the European Commission.

Reliable rumors claim that these two bills – which are twins bills, in the sense that their text is the same – have raised eyebrows among EU officials.

Now, the same text (the so-called Fava bill) is going to be proposed to the Parliament not as a bill, but as an amendment of the “Legge comunitaria”.

According to the Italian law the “Legge comunitaria” is an act which implements, at one time, the European laws which have not yet been implemented in the legal system.

At the present moment, this amendment has been discussed and approved by the Commission for the European Affairs. The new Italian Minister of the European Affairs has given his vote to the amendment, even if expressing concerns and arguing that the topic is sensitive and would deserve further study.

During the assembly at the Commission for the European Affairs, however, the notification of the original bills has not been mentioned as well as, presumably, the doubts of the EU Commission.

After the approval voted by the Commission, the new text of the “Legge comunitaria”, which includes the text of the Fava bill, has been submitted to the Parliament in order to pass the law.

According to Mr. Fava, the deputy who has written the bill, it would strengthen the protection of “the Italian products and the credibility of our system”.

On the contrary, many scholars argued that the bill should jeopardize the freedom of speech and the neutrality principle.

Mr. Fava replied that these scholars are only protecting the interests of the greatest internet service providers that are not willing to decrease their huge profits, offering their services also the infringing users.

To be honest, I stand on the opinion that considering who’s defending who is not the crucial issue. So,from a “vapid” point of view, I would only try to remark some critical aspects.

The bill would modify article 16 of the Legislative Decree No. 70 of 2003 which has implemented the e-commerce directive. According to this article – which implements article 14 of the e-commerce directive and regulates hosting activity – ISPs can be expected to remove a content only where they receive an order from a court or from another administrative authority.

The Fava bill should introduce the possibility for other subjects – anyone who has a specific interest – to notify the illegality of a content asking ISPs to remove it.

As for the “actual knowledge” test, the bill would introduce the following sentence: “using for this purpose all the information available to it, including those that have been provided by the owners of the rights violated by the information activity or, in relation to activities or illegal information previously stored by the provider on request of the same or other recipients of the service”. In other words, ISPs should be considered aware of the illegality of a content anytime they receive a notification from any other users of the service.

In my first book, published more than ten years ago, I tried to remark how such a choice could jeopardize the neutrality principle. ISPs have a contractual obligation to provide their services to their users. Services generally include the possibility for users to publish contents.

Is there any risk for ISPs to be sued by the recipients of their services if they remove these contents, following the request of a user, and these contents do not violate any rights?

But it gets worse, if possible. In fact, the proposed introduction of the paragraph 3-bis is probably the most interesting innovation to the original text.
Letter A) of this paragraph is not surprising. According to the bill, liability exemptions for ISPs should not be applied to “a) the service provider who deliberately collaborates with a recipient of its service in order to commit unlawful acts”.

Similarly, according to the letter C) of the same paragraph, liability exemptions should not be applied to the ISP “who has not fulfilled its duty of care which is reasonable to expect from it and which is required by law in order to detect and prevent certain types of illegal activities”.

This amendment could turn over the purposes of the EU directive, which holds that ISPs are not expected to prevent any unlawful activity.

Guess which are these “types of illegal activities”. Three options: pornography? terrorism? intellectual property?

According to the bill this duty of care includes the adoption of technically adequate filters in order to prevent information promoting counterfeiting activities. I stand on the opinion that someone should inform the Italian Parliament (and especially Mr. Fava) about the ECJ’s SABAM ruling, which stated that internet filtering violate both the European Directive on e-commerce as well as fundamental rights such as article 8 and 11 of the Charter of Fundamental Rights.

Furthermore, the bill would also introduce a paragraph 3-ter, stating that liability exemptions shall not affect the possibility of different injunctions, especially those regulated by the Code of Industrial Property (Legislative Decree No. 30 of 2005) and by the Italian Copyright Act (Law No. 633 of 1941).

As a result of the criticism of the first commentators, it is likely that the bill will be withdrawn (or rather it will not pass the scrutiny of the Parliament).

Otherwise, we can only expect the ax of the European Court of Justice.