With a landmark decision today the Italian Constitutional Court threw into confusion the Italian Internet market. The highest Italian court had been asked to verify the consistency with the Italian Fundamental Chart (Costituzione) of AGCOM regulation 680/2013/CONS, i.e. the regulation empowering the telecom regulator to repress copyright infringements in the Internet via content removal or web blocking orders. The constitutionality question had been referred by the Tar Latium, an administrative court in front of which the validity of various legal provisions on copyright enforcement had been disputed by some parties resisting against an order of AGCOM.

The copyright enforcement regime carried out by AGCOM had been loudly contested by a big part of the Italian Internet community, while rights-holders have been supporting it.

The Constitutional Court rejected the constitutionality request on the grounds that the Tar Latium referral was contradictory and wrongly formulated, thus without examining the merits of the questions. However, the same court expressed doubts whether regulation 680/2013/CONS has a proper legal in the Italian legal environment. This evaluation was expressed in an obiter dictum, i.e. a part of the reasoning which is not part of the deciding conclusions.

As a consequence, regulation 680/2013/CONS is still valid (because the lack of validity was not formally declared by the Court), however the entire system is now at risk because any interested party, facing a proceeding in which regulation 680/2013/CONS is involved, could claim, on the basis of the Constitutional Court’s comments, that such regulation is lacking a legal basis and therefore is invalid. Thus, it would be to the judge at stake to make a new evaluation and decide to reject the claim, desist applying the regulation or referring again the matter to the Constitutional Court for a more clear ruling.

The legal situation is more than complex now and, with no surprise, the Italian regulator AGCOM had not officially commented yet the ruling of the Constitutional Court.