The Regional Administrative Court of Lazio rejects the appeal against the online copyright enforcement Regulation of the Italian Communications Authority

After hard proceedings – which included a reference to the Italian Constitutional Court – the Regional Administrative Court of Lazio (the Court), with a decision published on 30 March 2017, rejected the appeal proposed by several Internet service providers and consumer associations against the online copyright enforcement Regulation adopted by the Italian Communications Authority (the Authority) in December 2013.

Such Regulation allows the Authority, in the presence of online copyright infringements, on complaints of the copyright holders, to order the Internet service providers – as well as the content providers, if recognisable – to remove the infringing works and to disable access to them or to the websites including them.

The appellants contested the absence of laws capable of assigning the power to regulate the copyright enforcement matter to the Authority.

First of all, the Court noted that the Constitutional Court did not affirm the lack of such power of the Authority, but had only found a lack of motivation within the order with which the Court had asked it to comment on the constitutionality of some rules of Italian legislative decree no. 70/2003 – i.e. the decree transposing e-commerce Directive no. 2000/31/CE in Italy – indicated by the Authority as basis of its regulatory power.

After having stated that, the Court rejected the appellants’ complaints in light of the following grounds. Firstly, the law that established the Authority – Italian law no. 249/1997 – entrusts to the latter the power provided by Article 182-bis of the Italian copyright law. In particular, such rule assigns to the Authority supervising powers in order to prevent and assess copyright infringements. Secondly, the power of regulating copyright enforcement against online infringements comes from the combination between the abovementioned Article 182-bis and the legislative decree transposing the e-commerce Directive rules regarding the ability of the Authority to order injunctions against Internet service providers for the online copyright infringements carried out by their users/content providers. Such rules, in fact, provide that the Internet service providers should co-operate with judicial or administrative authorities when they become aware of possible unlawful conduct carried out by their users.

Thus, to the Court, the Authority’s regulatory power in the copyright enforcement issue arises from the combined view of both the abovementioned laws, which allow the Authority to disable the access to infringing online content.

In the end, the Court noted, although the copyright law, under Article 156, already provides the possibility for copyright holders to request injunctions to stop any relevant infringement, this does not exclude per se the possibility for copyright holders to alternatively start an administrative proceeding to reach the same purpose. In fact, Article 156 expressly provides a double-track copyright protection – by civil and administrative proceedings –  without any prejudice to rules within the legislative decree transposing the e-commerce Directive.