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Deutsch: ENDitorial: Warum „Olivennes Gesetz“ in Italien nicht funktioniere...
"Olivennes Bill" (named after the French lobbyist who proposed it, also known as Hadopi law or 3 strikes law) 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 indictment 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 disconnected 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 would be affected by serious legal and Constitutional flaws, thus making it impossible to pass, for a number of reasons.
First, the 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 to the Public Authorities their users' criminal behaviour by fault of cross-combination between legislative decree 70/2003 (enforcing EU directive 31/00 on e-commerce and access/content providers online liability) and sect. 171 bis et al.of Law 633/41(Italian Copyright Law). Legislative Decree 70/2003, in fact, makes an Access Provider non-automatically accountable for its users' actions, provided that it doesn't willingly become part of those actions.
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 mandatorily investigated by the Public Prosecutor. Then, should Italy enforce 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 it 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.
http://blog.andreamonti.eu/?p=140
(contribution by Andrea Monti - EDRi-member ALCEI - Italy)