The Court of Milan (hopefully) puts an end to the hypocrisy of the internet without borders

An order of the Court of Milan – Business Section dated 4 November 2022 established that foreign internet providers must comply with the filtering orders issued by the Italian authorities on users’ DNS queries, to prevent the infringement of copyright on audiovisual material illegally disseminated by third parties. In addition to the questions relating to the methods of copyright protection, this provision calls once again and rightly into question the unfounded dogma of the Internet without borders.

In the specific case, the lawsuit had been brought by three Italian record companies (Sony Music Entertainment, Warner Music Italia and Universal Music Italia) against Cloudlare, the American giant which offers, among other services, an “open DNS” that can be used free of charge by anyone. The provider had refused to comply with the provisions of the Italian communications authority claiming, in summary, that it was not involved in illegal activities, that these orders could not be executed directly in the USA and that, in any case, they represented an obligation of user surveillance which was not permitted by law. The Milanese Court did not accept these theses and, while certifying the ISP’s non-involvement in violations of the law, confirmed the obligation to block access to its own open DNS.

Although not entirely convincing from a strictly legal point of view, the decision establishes an important precedent because it extends the range of action of the Italian authorities also beyond national borders. This ordinance, in fact, even surpasses the orientation that was formed in 2009 at the time of the famous “The Pirate Bay case”, when the Court of Cassation established that if an illegal content is found (or can be reached) on a server located at Outside the Italian borders, it is legitimate to oblige national internet providers to intercept and block users’ connection requests. As if to say: I can’t seize a house where drugs are sold because it’s across the border, but I can prevent reaching it by forbidding transit to anyone who wants to pass through the crossings that lead unequivocally to that destination. From that moment on, the “blackouts” have become a consolidated and no longer discussed practice, so much so that in 2021 it was extended from sites and torrents to Telegram channels as well.

It is not so clear that, at present, blocking orders on DNS are legally admissible because the regulatory framework is particularly confused on the point. Furthermore, coming to the commented ordinance, establishing that the provisions of an Italian authority apply directly abroad implies a “reciprocity risk. Other countries may directly order domestic operators to comply with foreign laws and be prosecuted abroad for non-compliance. However, and without prejudice to the right to the protection of content protected by law, it is a fact that Italian ISPs strictly comply with the provisions of the various authorities. This does not necessarily happen with all foreign open DNS because, in fact, they are based in other jurisdictions and therefore not subject to Italian law. In this sense, therefore, the Court of Milan has eliminated an imbalance in the electronic communication services market which damages national companies and allows for a greater (but certainly perfectible) balance between the interests of copyright stakeholders and national operators who are not involved in illegal activities.

In more general terms, moreover, the order of the Court of Milan strikes a well-aimed blow to the rhetoric that characterizes the narrative mainstream on the internet. A “free network” and its corollary, “a network without governments”, are clichés that are as wrong as they are believed to be true and have been around since the days of the Cyberspace Declaration of Independence, the suggestive but factually unfounded claim for autonomy pronounced in 1996 by John Perry Barlow. Although, over time, parliaments, the executive powers and the market have clearly demonstrated the falsehood of these assumptions, this has not prevented the construction of economic, industrial and — above all — government models based on the illusion that there could be a (as Barlow calls it) an independent and substantially anarchic ‘social space’.

Regimes with “variable democracy” have clearly demonstrated that when needed it is easily possible to limit access to platforms and, before that, to transport networks (as Italy could already do since 2010 and then formally from September 2019, with the issue of the decree law on the national cyber security perimeter). The fight against transnational criminal phenomena such as extortion through ransomware has led the investigating authorities to carry out direct actions in other countries with questionable legal value. The European Union has also been active on this front for some time, even going so far as to question the role of cryptography as a tool for the protection of fundamental rights.

The picture that emerges from the analysis of the political and judicial trends of the moment, and in which the order of the Court of Milan assumes a leading position, draws a scenario in which (not only) opposing industrial interests collide on the field of rights fundamentals which, therefore, are exploited according to the needs of this or that contender. Such a dialectic would in itself also be physiological if in the ring, in addition to the fighters, there were also impartial rules. In practice, however, this is not the case because – metaphorically speaking – legislators have long since (or always) given up on understanding the dynamics triggered by the diffusion of information technologies, and there is a limit to the supplementary role that can be interpreted by judicial decisions. Embarrassing examples such as the “shippers’ directive”, or future EU standards on artificial intelligence or “cyber-resilience” —not to mention “predictive justice”— are just the latest examples of this “state of the art”.

Consequently, to return to the metaphor and conclude the reasoning, instead of a boxing match, the rights disputes fought in the ring of the free internet look more and more like a wrestling match, where even the regulations are part of the fiction. but where the only ones who suffer real blows are the people and their rights.