On January 12^th , 2015, the “Commission on rights and duties in Internet” hold hearings with the Italian Data Protection Authority, Mr. Antonello Soro, the Italian Antitrust Authority, Prof. Giovanni Pitruzzella, and the Italian Communications Authority, Mr. Angelo Marcello Cardani.

In this context, the meticulous intervention of the Antitrust Authority, Prof. Giovanni Pitruzzella, on the “Internet Bill of Rights” (hereinafter “the Bill”), drawn up on October 13^th , 2014 and well known as “Magna Charta of Web”, deserves particular attention.

As the Authority notes, the reasons behind this essential and innovative act have to be found in the need to closely follow the digital reality, already established and integrated in the Italian and European social context. Until October 13^th , 2014 our system was dominated by the legacies of the past, which recognized only the traditional rights as worthy of protection. This was and still is an unacceptable position, also in light of the opinion, expressed by the Constitutional Court since the ‘70s, that the inviolable rights under the Article 2 of the Italian Constitution, are an open, and in progress, category.

However, even in support of the open character of the Article 2 of the Italian Constitution, the result would be insufficient: the extensive interpretation by analogy would give rise to the legal uncertainties, that instead the express recognition of Internet rights seeks to eliminate.

The Magna Charta of Web consists of 14 articles, of which three were considered, by the Authority, worthy of in-depth discussion as they are expected to have particular implications on antitrust matters. These are the following: the right of access (Article 2); the principle of net neutrality (Article 3); the rights and guarantees on web platforms (Article 11).

The right of access is intended in two ways: the first one is related to the possibility of link to the network and the second to the freedom of choice of operating systems, software or applications.

The right of access has always been the necessary corollary to the principle of equality that must be recognized also in the digital environment. The starting point is the availability and dissemination of basic fixed or mobile broadband network throughout the national territory: unfortunately the Italy is marked by a such digital gap that, according to the Digital Scoreboard data, still only 44 per cent of households have access to a broadband line against the 34 per cent that have never used internet. The reasons of the above, according to the Authority, include the lack of specific e-skills and the low interest for Internet services. The remedy of this takes place in the same Bill, under the Article 13 recorded as “Right of education”: “the cultural and educational dimension of Internet is an essential element in order to guarantee the effectiveness of right of access”; therefore, the public institutions have to be the initiators and promoters of this duty of education.

Besides this social and political dimension, the right of access requires the interoperability between technological platforms and web products or services: this especially involves all those providers who limit the compatibility of the web services because of their associated software (see in this regard Italian Antitrust Authority’s inquiry against Argo and Axios Italia Service S.r.l.).

As above, also in this case the remedy is entrusted to the antitrust capabilities to which the Authority is ready to enforce, calling on enterprises to develop software processing in place which would allow effective use of web data and services by other network operators.

The hearing of the Italian Antitrust Authority focused also on the principle of net neutrality, as a pivotal element both of the innovation in web services and the development of broadband network infrastructures.

The Court of Appeal of Columbia about the open order of the Federal Communications Commission stated that the net neutrality encourages investment, which in turn increases the demand of customers for Internet connection: this is the main driving force of competition in the telecommunications sector.

However competition must be not only dynamic but also fair and in accordance with the principles of fairness and transparency: the demand of customers largely depends on confidence in digital operators. In many cases, the lack of clarity in the terms on which goods or services are provided, on the basis of distance contracts, damages the faith of consumers in this field.

In this respect the Italian Antitrust Authority has had to take measures to end the unfair indication of the expected price in Internet transactions: it happens, for many companies, a portal that exposes the net, not inclusive of any supplements, making it seemingly more convenient than others, without the customer realizing.

Such unfair practices, in addition to the selling of counterfeit goods on web, not only damage effective competition but also frustrate the economic recovery: in fact the latter is largely conditioned by the confidence of the customer in Internet transactions and in electronic means payment.

In the light of the above, regarding the Bill and the Italian Antitrust Authority’s reading of it, we must acknowledge the Italian progress in recognition of rights and guarantees in Internet, for which our Country is aiming, but also the persistent distrust - entrenched in the social consciousness and highlighted by the Authority - of the mechanisms governing Internet and its contents.

It can be critically outlined that national institutions are requested to support effective enjoyment of Web under conditions of consciousness and equality, today recognized as a fundamental right, by adopting specific and sectorial policies.

This right, still emerging despite its recognition under the Bill, must be really and effectively fundamental, as legislatively qualified, for all the global people: greater security, fairness and harmony with the other individual rights, will allow digital awareness and social identification in web to increase.

Let us not forget that our Country was the cradle of democracy and, in fact, the preamble to the Bill states as follows: “Internet (….) is an essential instrument to promote the collective and individual involvement in democratic processes as well as the substantial equality”.

Dott.ssa Paola Perinu