SUPER-BREAKING NEWS: EU Commission had several serious doubts about Italian Communication Authority's Online Copyright Enforcement Regulation compatibility with fundamental rights and EU law

A few weeks ago the Italian Communication Authority (AGCOM) issued its much-awaited Regulation on online copyright enforcement [on which see here and here; unofficial English translation is available here]. As recalled here, by adopting its Regulation AGCOM set a very important precedent, for Italy and the EU alike. As regards the former, it is the first time in Italy that an administrative authority (as is AGCOM) has vested itself with powers (to grant injunctions) which traditionally have fallen within the competence of courts. As regards the latter, the Italian experiment has the potential to be looked at with either interest or fear by the other Member States, as well as informing debate around forthcoming review of the InfoSoc and Enforcement Directives.

Also in consideration of the "innovative" approach taken in the Regulation, the EU Commission was asked to provide comments on the first draft of the Regulation [see notification webpage here] focusing on compatibility with EU law, notably the Ecommerce Directive and the Charter of Fundamental Rights of the European Union.

Some hours ago, during an hearing before the Italian Parliament on online copyright protection and child safety [how exactly are these two issues connected, Merpel wonders?], AGCOM president Mr Marcello Cardani proudly declared that

“The European Commission, with which a constructive work has been done during the drafting phase of the Regulation, congratulated with AGCOM for the fair balance of interests that the Regulation has achieved (see Commission’s letter re draft regulation on 3 December 2013). French authorities have recently asked to come to Italy in order to study more closely the Italian model. These elements support us in positively evaluating the model that we have set up”.

Regrettably, notwithstanding the enactment of the final Regulation, the letter of the Commission on 3 December 2013 Mr Cardani referred to has remained unpublished for (far too) long time. A few days ago, we contacted the Commission to get access to this letter (as a matter of principle, we argued that transparency over acts of EU Institutions should be guaranteed and safeguarded, especially with reference to issues likely to have an impact over fundamental rights) with the declared purpose of making it available to the public.

Do ask, do tell!

A few minutes ago we received a copy of the misterious letter and we are very proud to make it available in full as Kat-exclusive for the very first time here.

Well, at a first sight, it would appear that what Mr Cardani said may not be the full story.

Starting from the end, the Commission, through its Vice-President Antonio Tajani, appeared concerned as regards the tight time frame allowed under AGCOM proposed infringement administrative proceedings, as they could seriously damage the right of defence:

The Commission also wondered about the even more limited time frame set in the case of what the Regulation calls as massive violations (eg, 3 days after the AGCOM’s order for an ISP to take down the allegedly infringing work, with penalty until 500,000 EUR in case of non-compliance):

In the final version of the Regulation Article 8 has become Article 7, Article 10 has become Article 9, and Article 7 has become Article 6

In its letter, the Commission appeared to believe that several points of the draft regulation required clarification, including:

·  The notions of 'digital work', 'uploader', 'website manager';

·  Whether there would be an obligation on any website manager to have in place notice and action procedures;

·  Whether selective action is envisaged only in relation to the removal of the alleged illegal content, and not also in case of disabling of access to it. Notably, would this imply that the addressee of the decision of AGCOM would need to disable access to the whole website, even if only part of that website is actually illegal within the meaning of the draft act?

In light of the issues and perplexities that the Commission eloquently raised in its letter, the final question is whether AGCOM took into consideration – and addressed – those points in the Regulation it eventually adopted? Does anyone have an answer?