Smári McCarthy

Building social, political and technical infrastucture

The Italian Wiretapping Bill

[Warning: I read about this on my cellphone just before stepping on a plane, and wrote it largely on the plane. I didn’t have references or resources, nor did I have a chance to talk to various people I’d have liked to. But I’m going to post it like it is anyway, in raw, unedited form. Enjoy. Also note, I am not a lawyer.]

The Italian Wikipedia has started a campaign against a proposed wiretapping law in Italy with the claims that the law, which requires immediate “corrections” pending any complaint from anybody who feels unfairly treated, slandered or libeled, is fundamentally incompatible with the existence of the Italian Wikipedia.

While functionally this is true, that the existence of open knowledge databases, free press and broadly speaking freedom of expression is fundamentally at odds with a law which requires unarbitrated censorship of opinion, creating effectively a distributed thought police, there are various aspects of the analysis provided on the Italian Wikipedia site which seem slightly too poorly researched for people from such a venerable medium. It is noteworthy though that Wikipedia, as a project, has very rarely taken a specific stand with regard to a particular political argument, but highly fitting that they should choose to do so on an issue of a fundamental rights issue like this one.

First off, the claim that the Italian language Wikipedia would need to be shut down. This is not true, as there are millions of Italian speakers outside of Italy who could still use and develop the Italian language Wikipedia if Italy were to go to such extremes. There is a possibility that if such a law were to take effect, there would be a valid reason to block access to Wikipedia from Italy, under the somewhat awkward understanding that access from the country equates to publication in the country – an understanding that the UK has used in libel cases.

However, without having read the proposed Italian law (mostly because I can’t read Italian, but also because I’m on a plane), I do not expect that it contains anything that limits its scope to articles published in the Italian language. If, for example, somebody were to publish a Occitian language newspaper in Piedmont, it would undoubtedly fall under the law. Therefore it’s safe to assume that under this proposed law, any publication would potentially be required to exercise this type of censorship.

So where does that leave the English version of Wikipedia? Or, say, the Pashto version? Is it sufficient for the invocation of the law that somebody in Italy should be able to feel slandered by any given fragment of text? That’s where we come to the next issue, which is jurisdictionality.

Wikipedia is, for better or worse, hosted in the United States. There are a number of proxy caches and database mirrors of various types scattered around the globe, but last time I checked (which was actually a couple of years ago) there were none in Italy. So, can Italian law actually apply to Wikipedia?

There are various answers to this, but the simplest one is that it depends. In Europe, for example, there is a directive on enforcement orders for uncontested claims. It’s unclear how exactly it’d pan out, but it seems that the proposed law doesn’t allow contesting of claims, therefore all claims would by definition be uncontested, and then all EU courts, except those in Denmark, would have a responsibility to enforce court orders that came from Italy based on this. That could effect the proxy caches in France, for example. Denmark and Iceland would be able to reject this under the terms of the Lugano treaty. However, such an action would require that the claim actually be taken to court, which appears to be the thing that this law is designed to try to prevent.

There’s also the question of specific cross-jurisdictional agreements. If, for example, Italy and the United States were to enter into a treaty… well. That’s pure speculation, and could actually amount to anything. Let’s not get lost in fiction.

Apart from that, it would seem that barring any international agreement on the definition of whether laws apply in the country of origin of the communication, or at the receiving end, any actual effects of this law on publications outside of Italy would have to be on a volunteer basis.

Now let’s talk about why even that will never happen.

First, there’s this little thing called the e-Commerce directive (2000/31/EC). It’s the European Union’s more-or-less equivalent for these purposes to §230 of the United States Communications Decency Act. They provide indemnity to Internet hosts that don’t mess with the data being hosted, meaning that unless there’s child pornography, copyright violations, or court orders, more or less that’s it. Too bad. That doesn’t really help things that have print publications… but then again, Wikipedia ain’t. Whole other kettle of fish.

Now. Even in Italy, there is a notion of fundamental rights. These are kind of important, or at least a lot of people seem to think so. The United Nations decided to go for a very broad text that’s nice and powerful but not very enforceable. The Council of Europe on the other hand has a slightly less lofty but much more enforceable human rights convention (ECHR), which has a court. That court doesn’t fuck around when it comes to this kind of thing, although strictly speaking they don’t have the ability to overturn laws, they’re pretty sure to slam this kind of extrajudicial censorship pretty hard.

An organization that does fuck around quite a bit, but has a very nice weapon, is the European Union. In particular, the Treaty of the European Union (TEU), article 7, allows for temporary suspension of a member state from the EU in the case of a reasoned proposal being presented, on the basis of a clear and sustained violation of Human Rights. I can’t remember the exact wording, but I’d say that this bill fits the bill, if you’ll forgive the pun. In fact, if it were to go through, it’d fit the bill even better than the Hungarian Media Law, which several people (including myself) argued earlier this year should’ve been taken on the rounds on TEU art VII. Unfortunately that never happened.

Actually, there’s a historical point there. I’m not going to name people because I didn’t have a chance to check with them, but back in April a group of free speech advocates met in Budapest to discuss the Hungarian Media Law. I wrote about it at the time. Our conclusion was that we needed to put together an action to get TEU article VII invoked against Hungary, because if the kind of totalitarian limitations on free speech were allowed to fester there, the so-called “Orbanization” of Europe would surely continue – it would fester and spread, like totalitarian cancer. Have I mentioned that it sucks to be right?

To be fair, Italy has been on this route for a long time. I have previously written about Legge Alfano and other attempts at establishing similar schemes. They by and large get smacked down in the Italian parliament, or the senate, or in the worst case so far got thwacked by the constitutional court. It’s as if Berlusconi and co don’t get it.

In all likelihood, this isn’t going to get anywhere. It’s going to be yet another annoyance that will further demark the line between the part of the world where free speech is respected, and the part which is controlled by despots. (Both zones are non-contiguous.)

Don’t get me wrong. We do need to fight this, and fight this we will. And we will win.

I’ll refrain from pointing out the irony that the apparently most abhorrent thing about a so-called wiretapping bill is not, in fact, wiretapping.