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Deutsch: Italien: Fragwürdige Entscheidung über Sperrmaßnahmen
The Italian Antitrust Authority (AGCM) has started ordering the blocking some websites involved in the online sale of fashion products, following several complaints made by consumers.
It is the first blocking measure ordered by this Authority (enforced through the collaboration with the antitrust department of the Guardia di Finanza), which relied on the Consumer Code and e-commerce rules.
In its blocking order, the Authority does not charge the provider with selling counterfeited products, but for the infringement of rules related to warranties, delays and delivery conditions..
This decision has been adopted against the company called "Private Outlet," which is part of the e-commerce "private club," where members can join for free and take advantage of special promotions of famous brands fashion products with high discounts.
AGCM has intervened after several reports of fraudulent behaviour, because Private Outlet allegedly "spread, through its website, content liable to mislead consumers about the availability of the products offered for sale": it has considered the elements collected enough to proceed a preliminary investigation and to demand the company to suspend any activity.
In order to ensure the efficiency of the measure and ostensibly to offer better protection for consumers, the Authority ordered the ISPs to completely block all domains that refer to the Private Outlet network on the whole Italian territory.
Granted that consumers protection is necessary and that the complaints are may well be valid, it seems that this kind of measure actually goes far further beyond what the Italian rules actually mandate.
Firstly, because these rules allow the Authority only to "demand the provider to prevent or put an end to the committed infringements", secondly, because the jurisdiction to issue provisional orders against third parties has always been exercised by the ordinary courts and, finally, because AGCM has provided these orders without the participation in proceedings of the subjects required to bear the measures and offer a defence.
We are talking about the exercise of an interlocutory power (which has all the characteristics of a criminal seizure) that, apparently, the Competition Authority believes itself to be mandated to exercise: this is contrary to what has been stated in some decisions of the Court, that have always attributed this power to the ordinary judicial body.
Moreover, blocking of IP address may not be sufficient to avoid the perpetuation of fraud (the provider could, for instance, change the address or even change its name): is it possible that the Authority cannot imagine more effective and less controversial measures? Measures which restrict fundamental rights that are not necessary and proportionate and that do not genuinely meet objectives of general interest are in beach of the European Convention on Human Rights.
Text of the provision - page. 89 (only in Italian, 12.03.2012)
http://www.agcm.it/bollettino-settimanale/5906-bollettino-82012.html
Vajont.com case (libel slander) - Court's decision declares unlawful the
blocking (only in Italian, 14.03.2012)
http://www.fulviosarzana.it/blog/liberta-di-stampa-e-di-espressione-il...
and
http://www.fulviosarzana.it/blog/esclusiva-lordine-di-revoca-integrale...
Moncler Case (counterfeiting) - Court's decision rescinds the blocking (only
in Italian, 4.11.2011)
http://brunosaetta.it/diritto/moncler-non-basta-la-parola.html
(Contribution by Elena Cantello - EDRi intern)