Internet liabilityliability ISP

New “era” for copyright Internet liability in Italy

Internet copyright enforcement regulations come into force today 31 March 2014 considerably changing the scenario for copyright Internet liability in Italy.

As previously reported, these regulations provide that rights’ holders are not required to approach the website manager in the first instance, but should submit a dedicated form providing all the information required therein to the Italian Communications Authority (AGCOM) in order to reduce the risks of potential abuses. 
Further to the filing of the complaint, AGCOM then has seven days from the notification to decide whether the request is justified or not. If it is, it will serve the report to the website manager, and should it be different, to the webpage manager, as well as whomever has uploaded the content. Upon the notification the managers or the uploader can decide to spontaneously take down the challenged material or submit a defence brief within 5 days from the notice, therefore allowing some sort of confrontation between the parties. AGCOM will then issue its decision within 35 working days from the date of filing of the complaint by the rights’ holder.
If the Authority deems the compliant is grounded it will request the defendant to prevent or cease the breach removing the offending content. Under such circumstances:
 
  1. if the website is hosted in Italy, Italian ISPs will also be required to perform a “selective” removal of the challenged digital work, and – in the instance of a “massive” copyright breach – to disable access to the entire website, while 
  2. if the website is hosted abroad, Italian ISPs will instead be requested to disable access to the whole site.

The above measures are meant to be very effective but should now be assessed in the light of the recent decision of the European Court of Justice which held that ISPs have to adopt measures necessary to disable access to infringing contents without affecting users’ freedom of information to lawfully access to the information. And the same concerns derive from the measures adopted following the seizure of 46 piracy websites that have now been unblocked as the filtering was blocking access also to lawful contents. Because of such issues the regulations have already been challenged, but pending future court developments if a defendant does not comply with take-down orders issued by AGCOM it may also be fined up to € 258,000 and therefore such regulations cannot be ignored. 

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Giulio Coraggio

I am the location head of the Italian Intellectual Property & Technology department and the global co-head of the IoT and Gaming and Gambling groups at the world-leading law firm DLA Piper. IoT and artificial intelligence influencer and FinTech and blockchain expert, finding solutions to what's next for our client's success.

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