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19th September 2011 from Twitlonger

#censorship #copyright A short analysis of Internet killer Centemero draft law by Paolo Brini for AirVPN.
Creative Commons 3.0 BY-SA (attribution, share-alike)

A bunch of Italian MPs from Berlusconi's party have proposed in late July a draft law which can hinder investments on the Internet in Italy, cause ISPs and hosting e-commerce collapse, and block freedom of expression and access to information. Currently the law has already been assigned to the proper committee for first analysis and check, an unusual fast track for Italy.

The draft law consists of two long articles amending the transposition of the eCommerce Directive in Italy (2000/31/EC, implemented with DLgs 70/2003) which state that:

1) citizens, outside of any judicial proceeding and without the right to appeal to the judicial authority, may be banned to access the Internet if ANYONE (a rightholder or an ordinary citizen) notifies a provider about alleged infringement of copyright or trademark or patent ("one strike" disconnections);

2) Internet service providers must comply to the blacklisting of citizens who are *suspected* of copyright or trademark or patent infringements ("proscription lists" to ban citizens from any access to the Net);

3) an Internet service provider must use preventive filters against services that infringe copyright, trademark or patents;

4) an Internet service provider must not promote or advertise, and must use preventive filters against, services that do not directly violate copyright, trademark or patents, but that *may* lead citizens to *think* that infringing services exist;

5) a provider or a hosting provider which does not use effective filters will be charged with civil liability.

Some parts of the draft law are clearly not applicable in real life, while others have the power to crumble ISPs and hosting e-commerce. It is *very* interesting to note that this draft law is compliant to one of the older versions of ACTA (the Anti Counterfeiting Trade Agreement). Some striking similarities and an analysis of "WikiLeaks cables" pertaining pressures on Italy about intellectual property privileges enforcement invite to further investigations about the real writers of the draft law.

Apart from constitutionality problems, the draft law does not seem compatible with the EU Acquis. In particular:

- it directly violates Directive 2000/31/EC, articles 12, 13, 14 and 15

- it directly violates Directive 2002/21/EC as amended by Directive 2009/140/EC ("Telecoms Package") art. 1(3.a). Telecoms Package has not yet been implemented in italian law (infraction procedure by the Commission may be imminent) but no Member State law can be incompatible with a Directive already approved by the Council and the Parliament, even though that Directive has not yet been transposed in the law of that Member State;

- it does not comply to the right to a due process, including the right to be heard and legal representation, as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union;

- it does not comply to the right to conduct a business, as enshrined in the Charter of Fundamental Rights of the European Union;

- it does not satisfy the Principle of Proportionality.

References:

Italian Centemero draft law http://is.gd/qkzGxA

Anlysis of Centemero draft law by italian lawyer Fulvio Sarzana:
http://is.gd/uyWdYv

Directive 2000/31/EC
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0001:EN:PDF

Directive 2009/140/EC
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0037:0069:EN:PDF

Charter of Fundamental Rights of the European Union http://www.europarl.europa.eu/charter/pdf/text_en.pdf

European Convention for the Protection of Human Rights and Fundamental Freedoms
http://conventions.coe.int/treaty/en/Treaties/Html/005.htm

The Principle of Proportionality for EU policy making and Member States application of EU laws:
http://www.echamp.eu/news/echamp-news-archive/2009/aprilmay/the-principle-of-proportionality.html

Directive 2009/140/EC, article 1(3a):
3a.
Measures taken by Member States regarding end-users access’ to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.’;

Comment by Paolo Brini for AirVPN
Creative Commons 3.0 BY-SA (attribution, share-alike)

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