Why “Olivennes Bill” wouldn’t work in Italy

Olivennes Bill” (named after the French lobbyist who proposed it) on copyright protection has been blocked by the French Parliament a couple of days ago (but there is little doubt that French Government will try to have it approved ASAP.) If  (better, when) passed, this bill would have enforced a “parallel indictemnt system” handled by an “independent” authority called HADOPI acting as an actual Justice Court, that is given the power to decide, without a fair trial, whether a person deserves to be disconnetted by the Internet after being warned twice by copyright holder through the concerned Internet Access Provider.

Entertainment Industry lobbyists like this approach very much and are pushing hard to have Italy enforce it too. “The Problem” is – fortunately – that Olivennes Bill Italian version’s  would be affected by serious legal and Constitutional flaws, thus making it impossible to pass, for a number of reasons.

First, Italian Code of electronic communication (L.259/03) sect. 4 para I letters f) g) and h) make network neutrality mandatory. To impose over Access Providers’  shoulder filtering duties or any other technological activity limiting the way Italian Public Network (rete pubblica di comunicazioni) works, would be what the Code calls “discrimination among specific technologies” and “forcing the use of a particular technology against others”.

Second, the Access Providers would be forced to report the Public Authorities their users’ criminal behaviour by fault of cross-combination between legislative decree 70/2003 1 and sect. 171 bis et al. of Law 633/41. 2 Legislative Decree 70/2003, in fact, makes Access Provider non-automatically accountable for its users’ actions, provided that he doesn’t willingly become part of it. Furthermore, the Decree says that the Access Provider must report to the police forces any criminal misconducts as soon as he’s been given sound evidence of a criminal behaviour committed by an Internet user, thus forcing the prosecutor to start a criminal investigation. All this, is possible because Italian Copyright infringement provisions are “designed” to be mandatory investigated by the Public Prosecutor. 3Then, should Italy enforces an Olivennes-like legislation, there would be a “double trial” for the same (alleged) fact: the first – real – under a Court scrutiny, the second – “mock” – run by an “independent” authority, leading to a conflict of public powers.

Third, as a side question, nobody told Mr. Olivennes that his bill is oddly similar to ancient Western Europe Barbarian laws, where didn’t matter who the actual culprit was, because the victim had the right to retaliate against any other culprit’s family member. This is what Mr. Olivennes proposes: to seclude a whole family or company from the Internet, for the (alleged) wrongdoing of a single member.

Not bad, as an exercise on democracy.

  1. enforcing EU directive 31/00 on e-commerce and access/content providers online liability
  2. Italian Copyright Law
  3. Italian Penal Code contains two “kind” of crimes: the first one is composed by very serious misconducts such as homicide and money laundering – to name a few – that must be investigated no matter if the victim ask for it. Second one is composed of serious crimes too, whose investigation begininnig is in victim’s own hands. In other words, if the victim of a theft doesn’t ask the public prosecutor to start investigating the crime, nothing happens, even if a policeman or a magistrate knows that the fact actually happened.

2 Replies to “Why “Olivennes Bill” wouldn’t work in Italy”

  1. Andrea, thank you very much for your effort to bring italian flawed ICT’s policies into the international spotlight.

    Unfortunately in this post you seem to underestimate the power of a government supporte by such a large majority of MPs.

    An Italian version of the Olivienne bill could easily provide the necessary amendments to decree 70/2003 and Law 643/41. This would not be in open contradiction with the boundaries set by EU Law in this domain. Indeed, the French authorities took the necessary step to get their approch to comply with the minimal EU’s requirements.

    As for the “ne bis in idem”, this principle does not apply to administrative decisions on the same matters as judicial rulings.

    Other ways should be found to contrast this repressive “three strikes” approach but, to be honest, seeing how things work in Italy, my expectations are very low.

  2. Fede said
    “As for the “ne bis in idem”, this principle does not apply to administrative decisions on the same matters as judicial rulings. ”

    You’re right, but I’m not sure that an HADOPI-like agency, in Italy, might have the status of “administrative authority” (such as the Data Protection Commissioner.) Bills proposed by Italian MP’s in this milieu – for instance – pushed to establish a sort of “semi-private commission” to evaluate the claims and enforce the “punishment” with no real “fair trial” regulation.

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