The Bergamo Criminal Court overrules the seizure, but establishes a case law that is a violation of civil rights
On 16th August 2008 ALCEI reported to the Italian Data Protection Authority the violations of law contained in the pre-emptive seizure order issued by the Justice for preliminary investigation of the Bergamo Tribunal. In that report, ALCEI pointed out that:
- the wrong and manipulative extension of the provision that disciplines a pre-emptive seizure to include the hijacking of online traffic;
- the enforcement of a court order outside Italian jurisdiction and, what’s even worse, not based on any actual criminal offense, but on “statistical” hypotheses based on data that have no scientific reliability;
- the misconduct by the Bergamo Guardia di Finanza that, without any court order, ordered Internet access providers to redirect all requests of connection from Italy to the thepiratebay.org website to another site, placed in the UK and managed by an organization backed by music industry.
While we are waiting for the decision of the Data Protection Authority (that we hope will come soon) the Bergamo Court has overruled the preemptive seizure order with a decision that, instead of solving the problems arising from the first decision, creates worst issues. The Bergamo Court, in fact, has overruled the seizure, but only on the legal basis. As it had been pointed out by ALCEI, that “seizure” cannot be interpreted as “traffic hijacking”.
But the court did not, as it should have done, evaluate first of all the lack of Italian jurisdiction. By not doing so, the Bergamo tribunal has created a dangerous case law that, by reciprocity, allows any foreign magistrate to investigate and take to court an Italian citizen, with the additional absurdity that even in the absence of any evidence that a crime has been committed, a legal prosecution can be based on hypothetical “statistic calculation”.
Furthermore, by asserting the validity of the public prosecutor investigation, the Court has de facto established the automatic liability not only of internet providers, but also of search engines, and the possibility of using, as an investigative tool, data and information with no solid ground.
And also, by saying that even if preemptive seizure has been wrongly enforced , it is in theory compatible with sect.14 D.LGV 70/20003 (EU E-commerce directive implementation, dealing with ISP liability), the Court of Bergamo on the one hand allows “owners of ideas” to push for an additional and barbaric copyright law amendment while, on the other hand, it reaffirms an obvious error of interpretation of law by affirming the role of ISPs as “sheriffs of the net”.
ALCEI expresses serious concern about this court decision that fails to offer clear references for citizens and enterprises, increases confusion and the perception that, when copyright is involved, law is not “equal for all”.