In 2023 the Italian Communications Authority (“AGCOM”) was given new tools to fight audiovisual piracy, including the use of dynamic injunctions to block domain names and IP addresses that unlawfully distribute live broadcasts of film premieres, sports events, and events of social significance. The Italian Parliament is now debating an amendment to that Law no. 93/2023 (“Law”), which goes even further.
The first key amendment authorises AGCOM to order the takedown of IP addresses that “predominantly” host illegal content. Previously, AGCOM could only disable access to IP addresses in Italy where there was clear evidence they “exclusively” hosted illegal content. Now, even IP addresses containing, for instance, 49.99% legal content can be disabled. It remains unclear how such specific analyses will be quantified.
The second key amendment imposes an obligation on “providers of information society services” (including hosting providers) to promptly inform law enforcement or judicial authorities whenever they become aware of any copyright infringement by their users, or suspect that any such activities are taking place. They must also provide all relevant and available information relating to the infringement when they do so. Failure to comply may result in a criminal sanction of up to one years’ imprisonment. In practice, when a (mere conduit, caching or hosting) provider knows or merely suspects that illegal content is available on its platform or through its services, the amendment suggests it must immediately inform the public authorities, upon penalty of a criminal sanction and vicarious liability for infringement for the platform itself.
The last key amendment mandates that all providers of information society services, including without limitation online search engines, hosting providers, VPNs, CDNs, etc., that do not have an establishment in the EU shall “designate a legal representative” when they offer their services in Italy and shall communicate their name to AGCOM. Legal representatives shall have the power to discuss any copyright-related matters with AGCOM. Similarly, EU providers will be required to designate a “point of contact” for all such copyright-related matters.
Conflict with the Italian Constitution and EU principles (i.e. DSA)?
The proposals raise serious questions regarding conflict with Italian constitutional principles. In particular, the proposal of imposing criminal liability raises serious concerns, and appears at odds also with the EU’s DSA (,articles 4, 5, 6, 8 and 18). For instance, Article 18 DSA obliges only providers of hosting services (and not all intermediaries) to inform the competent public authorities only in case of offences involving a threat to the life or safety of a person or persons. That risk does not extend to copyright infringement.
Further, from now on, non-EU service providers will – in principle – be subject to AGCOM’s jurisdiction pursuant to article 56, par. 6 of the DSA, given their obligations to appoint a legal representative in Italy when they offer their services in the Italian territory. However, this provision potentially contravenes the DSA, given that according to the latter non-EU service providers shall be free to designate the legal representative in the member state of their choice, while the new law obliges them to choose (at least) a legal representative in Italy.
Next steps
On Oct. 7 the Parliament approved the amendments to the Law which is now in force.