Recently, a hot topic for discussion proved to be the proposed amendment of the Italian Legislative Decree (D. Lgs.) n. 70/2003 (implementation of Directive 2000/31/EC – so-called “E-Commerce Directive”), introduced in committee by the parliamentarian Giovanni Fava (“Lega Nord” Party).
This amendment aims to introduce a small but significant change in art. 16 of the decree concerning the liability of providers of online hosting services for content posted on their servers: should the amendment be approved by Parliament, the new version of the article in question would give responsibility to the hosting provider for published content, not only when it has been made aware of it by judicial / administrative, but also when this information has been given to him by any interested person.
The possible modification has raised a chorus of protests, which have argued that by this addition the Legislative Decree no. 70/2003 would assume similar content to U.S. initiatives SOPA and PIPA. By contrast, other authoritative voices have argued that the Decree, In the current formulation, does not effectively implement e-commerce Directive, and that the change would mend this “oversight”.
It is to be noted that the the Italian legal system is already compliant with Directive 2000/31/EC, that allows Member States to require a court or administrative authority to issue a qualified order, for the service provider to prevent/terminate a violation.
Should the new formulation be approved, the amendment would exponentially increase removal requests to hosting providers, which would be required each time to decide on their own better judgment (and therefore without any real guarantee in case of errors, nor possibility to oppose, or at least to counter-notice) whether to remove content deemed harmful, with all the consequences – economic and otherwise – in case of an error.
This scenario may not be good anyway because it would end up substituting the opinion of the provider (which still would not be obliged to remove, if not believing proofs of an offense it has received) to a judiciary statement, which certainly constitutes a mandatory order of removal.
The proposed solution seems to be no better than those studied by AGCOM within the public consultations on the subject: such solutions, indeed, have better guarantees of impartiality in the assessment on whether to remove or not a content and, in any case, follow a proceeding of reasonable duration and offer warranties to the content owner as well as to the recipient of the order.