The Authority That Protects Our Bits and Bytes
When Agcom was established in 1998, the challenges it had to face were very different from the current ones. The community authority was called to supervise the correct functioning of a media society that was still largely analog. As the years went by, new objectives that could not be envisaged at the time have been added to founding ones, starting with those emerged with the commercial explosion of the Web. No matter its evolution in more than fifteen years of existence, Agcom's mission has remained intact. To be an independent authority with regulatory oversight in matters of multimedia convergence in telecommunications, information technology and television. The breakneck speed of innovation has accelerated the diffusion of content via digital technology. So Agcom went from the scarcity of the broadcast spectrum to the seemingly unending abundance of the Internet.
Does this shift mean that the agency should no longer worry about pluralism, the polar star of its regulatory activity? The answer is no, if we see how in recent years the authority has considered cases where the excessive market dominance exerted by some Internet companies undermines pluralism on the Net.
A central item on the agenda is to ensure the adequate protection of relevant constitutional rights, starting with media pluralism, in times when the economic terrain is increasingly constituted by bits rather than atoms. It is over the Internet, and particularly on the protection of copyright on the Web, that a crucial regulatory battle is being fought by Agcom.
Copyright and the Internet: the growing role of constitution scholars
At the end of 2013, the authority has issued a regulation that calls for a system of online copyright enforcement. The regulation has been hotly contested, both in terms of whether the authority has the power to issue it, and in its contents. In spite of several cassandras, the regulation has worked remarkably well, and at the end of the month, it will face a decisive test. The Consitutional Court will rule on whether Agcom's basic norms underlying the regulation do not go against the principles of the Italian Constitution. The sensation is that the High Court will rule in favor of Agcom and that the authority will continue to implement the regulation by balancing across the various interests at stake.
In the longer term, the most important issue is another, however, namely the growing constitutional relevance of fundamental rights as expressed on the Internet. This calls for an additional effort by scholars of Constitutional Law. They can no longer sit on the sidelines, and watch scholars of other disciplines attempt to solve problems that are legal by definition, and are thus in need of theoretical reflections conducted with tools of the constitutional jurist.