Italy's First Attempt To Block Websites With No Judicial Review Reveals How Dangerous The System Is

from the this-is-a-problem dept

Fri, May 2nd 2014 2:22pm — Mike Masnick

Late last year, we wrote about how Italy was about to change some of its copyright enforcement setup to give enforcement powers to regulators instead of the courts. That is, regulator AGCOM could now simply declare -- with no judicial review or due process -- that certain sites were infringing and then order ISPs to block access to those sites. While other Italian prosecutors have sought to do the same thing, AGCOM now has the official power to delete websites off the Italian internet if they so much claim they're somehow infringing.

Recently, AGCOM decided to exercise its new power, issuing its first administrative blocking injunction against a site called Cineblog01 -- meaning that ISPs in Italy need to block users from accessing the site. Now, it does appear that the site was linking and/or embedding certain films that may have been infringing. But there are still serious problems with the injunction. IPKat, who wrote about this, details three fairly serious problems with the way that AGCOM handled this.

AGCOM declared the site guilty of "massive infringement" based on having just eleven movies. That seems like a ridiculously low threshold. Under such a threshold nearly any user-generated content site might be declared as engaging in "massive infringement."
Much is made of the claim that AGCOM tried to reach the operator of the site. They are required to try to communicate with the "website manager." Since the operators of the site used a privacy guard feature from their Panamanian registrar for their Whois entry, AGCOM basically just reached out to that Panamanian registrar, and when there was no response, concluded that the site's operators were ignoring the requests. While we can argue over whether or not the site should have provided a better means to communicate, it still seems fairly weak to argue that sending an email to a third party like that constitutes true notification of the complaint.
Third, and most importantly, IPKat checked out the site and the eleven movies in question... and found that they all had been removed already. In other words, it seems fairly clear the site was perfectly amenable to a standard notice-and-takedown type of system, but AGCOM went all in and ordered the entire site blocked.

It's entirely possible that the site had bad actors who were violating the law, but it certainly doesn't look like AGCOM is being all that careful to make sure that's the case, and that's almost certainly going to lead to problematic results.

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Filed Under: administrative review, agcom, censorship, copyright, injunction, italy, takedown

8 Comments

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Baron von Robber, 2 May 2014 @ 2:59pm

What needs to be done...
...is find the names who head up AGCOM. Then find out if any of them have a website. If so, does it allow user content.
If so, LOAD THAT PUPPY UP WITH INFRINGING CONTENT!

Then wait for them to shoot themselves in the foot.
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Anonymous Coward, 2 May 2014 @ 3:15pm

Even "judicial review" is too low a burden upon governments that wish to prevent its citizens from accessing particular web sites. Shutting down a web site where it's being hosted generally requires more than judicial review, and making it permanent generally requires a proper trial.

Blocking a website is comparatively too easy, and the person or company whose website is being blocked often isn't even afforded the opportunity to participate in whatever the law pretends is due process. ICE's so-called "Operation In Our Sites" is an excellent example of this.

Governments should stick to shutting down websites hosted within their own jurisdictions, according to local law.
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Anonymous Coward, 2 May 2014 @ 3:39pm

Re:
Governments should realize that when the burden of enforcing a law through the use of due process become too much of a burden, and would overload the police and courts, then the law is broken.
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Anonymous Coward, 2 May 2014 @ 3:40pm

what this is doing is exactly what the entertainment industries want and that is to be in control of the internet. and what makes it even worse is there are politicians and law makers in every country where this control is being sought that are doing whatever they are asked/ordered to do in return for 'special favors' from the industries. there can be no other explanation for any country and law enforcer for removing the judicial process from being in place and allowing a completely bias company, working on behalf of the entertainment industries to do as the like over any and every copyright accusation, not infringement and go to whatever lengths they like. how the EUCJ has not been brought in on this, i dont understand but then they have done absolutely nothing to protect someone who has been imprisoned on charges that have already been dismissed in another country, while they try to find evidence to build a case against him! like everywhere else, justice is only applied when big money and power allow it to be!!
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avideogameplayer, 2 May 2014 @ 3:43pm

Consider the source, they locked up SCIENTISTS for not being able to predict an earthquake...
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avideogameplayer, 2 May 2014 @ 3:46pm

Re: What needs to be done...
http://www.agcom.it/

Good luck...
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Anonymous Coward, 2 May 2014 @ 10:23pm

Anonymity
In every European country that I know of, it is a legal requirement for any trading company or person to disclose/display their identity, address, etc. So the authorities would be entitled to close any non-compliant commercial web-site irrespective of hosted content.
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Ninja (profile), 5 May 2014 @ 6:02am

Re: What needs to be done...
You do realize this can be used to censor anything they dislike, right? Sure it works two ways but considering it's a completely subjective process do you really believe they will not set the bar to orbital heights when it suits their needs?
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