AGCOM And The Administrative Enforcement Of IP Rights

The Issues Concerning the Legitimacy of the Regulations -

At the end of a process started in 2010, after three public consultations on an equal number of proposals, on December 12, 2012 AGCOM (i.e. the Italian Communications Authority), adopted regulations that established the powers that it can exercise in case of breaches of copyrights in the Internet. The legal framework that has been created is unprecedented in Western countries, since an independent administrative authority is granted the power to impose, in the course of a shortened proceeding, exceptionally severe injunctions and other restrictive measures, traditionally falling under the competence of the judicial authority, and imposed at the end of proceedings where the right of defense is fully guaranteed.

AGCOM's decision to provide itself with strong coercive powers, which can be exercised in the course of unusually short and informal procedures, coupled with the absence of clear legislative grounds on which AGCOM's (self- )regulatory powers might be based, induces to think that, prior to the entry into force of the regulations (scheduled for March 31, 2014), Italian administrative judges will be called to rule on its legitimacy, which was already questioned by various stakeholders in the course of the three aforesaid public consultations, and has been the object of inquiries by the European Commission and the UN Rapporteur on Freedom of Expression and Access to Information.

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