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Deutsch: Das FAVA Gesetz – ein neuer Versuch zur Beschneidung der Bürgerrech...

There is a wide (and mainly unjustified) hype, in Italy, about a draft law proposed by a Mr. Fava, an MP belonging to the right wing party "Northern League". He asked the Italian Parliament to burden the ISP's shoulders with a duty of pre-emptive control (and consequent liability in case of lack of) for the wrongdoings of its users in the counterfeit milieu.

Mr.Fava's proposal is nothing but the last of a series of draft laws proposed during the past ten years, aimed at this same target, and supported by the endorsing MPs as a way to fight child pornography, defamation, copyright and - finally - the selling of counterfeit goods.

None of these proposals have ever outcome in a law, nevertheless they spread the wrong message that, on the Internet, the principle of the "personal liability" i.e. every person is responsible for his own actions - doesn't work. The same, indeed, is true for Fava's bill. Coming to the specific topic, Mr. Fava proposed the amendment of the legislative decree 70/2003 enforcing in Italy the EU E-commerce directive to widen the ISPs'liability.

Technically speaking, Mr. Fava's proposal has no ground. Counterfeit is, in Italy, a crime, and criminal law already punishes both the author of the crime and whoever gives him support (as associate or accomplishes.) Thus, if an ISP is found actually supporting a counterfeit crime (or any other kind of crime) can be prosecuted within the current legal framework, without the need of additional provisions.

Furthermore, as said, the legislative decree Mr. Fava wants to amend is the verbatim enforcement of an EU directive that contains none of what Mr.Fava wishes. Thus, the Italian Parliament has no "jurisdiction" over a European Union's settled law.

But why, then, did this proposed bill raise so many concerns? First, "digital rights" and "free speech" have fallen into media "blending machine" and civil rights issues are often "blurred" with claims of immunity for third party rights infringements. So, a cultural alliance between non-specialized journalists and opinionists invariably leads to threatening claims about the end of free speech and to the same invariably useless facebook fanboys' indignation.

Copyright, trademark and patent laws are actually damaging the essence itself of the civil rights (look at Apple's attempt to gain control over ideas through IP law-backed lawsuits) but this has nothing to do with the immunity asked by those who want to be free to download LOST's last season for free. The problem is that the journalists don't want to enter what is a perceived as complicated line of thinking, fearing to bore the readers. They want a cheeseburger-like stuff: easy to "cook", fast to deliver and "tasty" to eat. So long if that's junk food. Of course this is not an absolute statement, but a recognition of what often happens into the wild of the media frenziness.

Second, MPs are always seeking for industry support and vice-versa. This time (late according to software, entertainment, media and publisher industry) is the moment of the fashion manufacturing industry to try to shift the liability of users on the ISPs shoulders. This is the issue that Mr. Fava's proposal wants to deal with.

Third, despite the "ISP liabililty war" that has been fought in Italy for at least fifteen years, the Telco and ISPs industry didn't set up a long-term strategy to counter the attempt of both the governments and some specific industry sectors to obtain laws protecting very narrow interests. The result is a "stop-and-go" activity that only handles the urgency of a specific situation. No energy is allocated on the spreading of a cultural framework that shows how the protection of civil rights is a valuable asset for both the industry and the government.

In conclusion, Mr.Fava's bill is nothing but another nail in the coffin of civil rights protection because, again, it shifts the focus of the attention from the true threats against the citizens to the claimed "protection" of limited economic interests. It will not stop criminals, while it will put the rights of honest people in danger.

Amendment suggested by Mr. Fava (only in Italian, 12.2011)
http://nuovo.camera.it/453?bollet=_dati/leg16/lavori/bollet/201112/121...

Copyright, the beautiful country of the SOPA (only in Italian, 20.01.2012)
http://punto-informatico.it/3406503/PI/News/copyright-sopa-del-belpaes...

Intermediaries, private removals? (only in Italian,19.12.2011)
http://punto-informatico.it/3369614/PI/News/intermediari-rimozioni-pri...

Towards an Italian SOPA? (30.01.2012)
http://www.medialaws.eu/towards-an-italian-sopa/

(Contribution by by Andrea Monti - EDRi-member ALCEI, Italy)