Italian Constitutional Court to Decide Whether Administrative Enforcement of Online Copyright Infringement is Constitutional

A few days ago, an Italian administrative Tribunal referred to the Italian Constitutional Court a question regarding the constitutionality of the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright Infringement (“Regulation”). As we have reported in previous blog posts, the Regulation, which entered into force on April 1, 2014, empowered AGCOM to enforce online copyright infringement. Under the Regulation, AGCOM may order access and hosting providers to block access to websites hosting infringing materials or remove allegedly infringing contents after a short administrative procedure.

Following a claim brought by a number of consumer associations, the Regional Administrative Tribunal of Lazio asked the Constitutional Court whether website blocking orders issued by an administrative body, such as AGCOM, comply with constitutional principles, including freedom of expression, economic freedom and proportionality. Additionally, the administrative Tribunal questioned the constitutionality of the whole notice and take down system put in place by the Italian implementation of the EU E-Commerce Directive. In fact, the administrative Tribunal asked the Constitutional Court to review the constitutionality of those European provisions allowing “a court or administrative authority” to require Information Service Providers to “terminate or prevent” infringement. Those provisions served as the legal basis for the enactment of the AGCOM Regulation.  In referring the review of these provisions to the Constitutional Court, the administrative Tribunal noted:

The “double track,” administrative and judicial, provided for by the European Directives that AGCOM referred to [as a legal basis to enact the “Regulation”], should be construed by taking into consideration the necessity that the limitations to access the Internet in order to protect copyright should be balanced with other rights protected by European law, such as the principle of proportionality.  However, those limitations should be subject to a preliminary judicial review. In any event, it should be considered that the implementation of those Directives in the Italian legal system cannot undermine the protection provided by our Constitution to other potentially conflicting fundamental rights.

The question of the constitutionality of the AGCOM Regulation was raised several times by Italian academics and civil society during the procedure that brought to the enactment of the new Regulation.  Finally, the Italian Constitutional Court will have a chance to review this question. It will probably take some time but we will keep you updated as soon as the Constitutional Court will reach a decision.