BREAKING NEWS: AGCOM issues the first fastissimo administrative blocking injunction

Less than one month has lapsed since the Italian Communication Authority (‘AGCOM’)’s Regulation on Online Copyright Enforcement [on which see the IPKat’s notes here, here and here, along with this Kat’s keynote at the #HappyKat event here] came into force, and just yesterday AGCOM issued the first administrative blocking injunction against a foreign website [the decision is available here].

As our readers and/or attendees to the Happykat event may recall, the Regulation provides for two different tracks: one “regular”, which may last until 35 working days, and one “urgent” [aka “fastissimo”] in case of massive infringements, lasting a 12 working-day maximum. Further, the Regulation provides two sets of sanctions, the issuance of which depends on the location of the server hosting the allegedly infringing contents. If it is located in Italy, the procedure may end either with an order of selective takedown to the Italian hosting provider or with a blocking order of the whole website issued towards Italian access providers in case of massive infringement. For websites hosted outside Italy, the only measure available is to block the whole website.

The case decided yesterday concerned the website www.cineblog-01.net. According to AGCOM’s investigations, the hosting provider was an American company that used a server located in Holland, while the registrar of the domain name was Panamanian. Notwithstanding this international melting pot, AGCOM alleged that more than 90% of accesses to the website came from Italy, and the language of the website appeared to be Italian.

On 7 and 14 April, FAPAV [the Italian Federation for the Protection of Audio-visual and Multimedia Contents, representing BIM Distribuzione S.r.l., Eagle Pictures S.p.a., Filmauro S.r.l., Lucky Red S.r.l., Notorious Pictures S.p.a.] and the Italian company Inthelfilm s.r.l., filed two different complaints with AGCOM, claiming copyright infringement in eleven movies unlawfully hosted on that website. AGCOM considered the making available of eleven works enough to amount to a massive infringement and gave the green light for the fastissimo procedure to be applied.

After joining the two claims in a single procedure, AGCOM verified the ownership of the claimed copyright, the actual availability of the eleven protected works on www.cineblog-01.net and assessed that no copyright limitation could apply. Thus, on 15 April, AGCOM sent the “website manager” a notice stating the claimants’ requests and the URLs where the infringing works were located, inviting it to take them down or to appear in the proceedings within three days. A public notice was also published on AGCOM’s website to warn the Italian access provider of the pending procedure and allow them to file observations.

One of FAPAV's movies:
not a long way to take down

As the three working days passed without reaction from the website manager or from the access providers, on 23 April [ie, 7 working days after the filing of FAPAV’s claim that convinced AGCOM to apply the fastissimo procedure] AGCOM ordered “the mere conduit providers operating into the Italian territory … to disable access to the website www.cineblog-01.net”. The communication also pointed out that, in case of non-compliance within three days from its service, AGCOM could fine the mere conduits amounts between EURO 10,000 and 258,000, and forward the procedure to the Italian Judiciary Police. The order may be appealed to the Italian Administrative Court within 60 days from its service.

Three things are of interest here.

The first point concerns the threshold for a violation to be considered “massive infringement”, which is of seminal importance as it allows AGCOM to adopt the fastissimo track [lasting 12 working days maximum instead of 35] alongside with blocking orders [instead of orders of selective removal] against websites hosted in Italy. In the case at stake, AGCOM considered “massive infringement” the unlawful hosting of eleven movies. With such a medium/low threshold, the fastissimo track and the disablements of whole websites might not be the exceptional measure that one could expect.

Secondly, the order makes some clarity as to what the Regulation means with “website manager”. Alongside the “webpage manager” and the “uploader”, the “website manager” is one of the subjects who receive the first AGCOM notice and who can either remove the contested contents or appear in the procedure to seek for the dismissal of the claimant’s requests. However, none of these can be targeted by AGCOM’s orders and fines [they only concerns hosting providers and mere conduits]. As the IPKat reported, the EU Commission raised concerns as to the introduction of “website” and “webpage manager” categories, which lack in the E-Commerce Directive, and asked AGCOM to provide for clarifications in this regard. 

From yesterday’s decision, we now know that the “website manager” may be either the person who actually manages the website, to be identified as the person who receives the emails provided in the “contacts” session of the page, or, if there is no “contacts” session, the person indicated in the website’s Whois profile as “admin”. In the proceedings at stake, the www.cineblog-01.net did not provide any email to contact the admin of the website directly . Thus AGCOM considered as “webpage manager” the same Panamanian company that appears both as “registrar” and “admin” of the domain name <cineblog-01.net> in the latter’s Whois. If it is true that the Regulation binds AGCOM to serve the notice upon the uploader, the website and webpage managers only if they are “reachable”, Merpel wonders how generous a Panamanian registrar should be to stand for contents hosted on one of its clients’ websites.

Finally, while writing this note, this Kat tried to access the infringing movies through the links listed in the AGCOM’s order, surprisingly discovering that they have all been removed:

Given that, do Italian mere conduits still have to comply with AGCOM's order? If yes, after a possible block the real webpage manager of cineblog-01.net could ask AGCOM to withdraw the blocking order by providing evidence of the takedown [although it could take a while: the movies in subject of the complaint do not appear to be the only contestable ones on that website]. In any case, quoting George W., AGCOM’s mission is accomplished.