Piracy Shield Blocking Orders and AGCOM Powers over Foreign DNS and VPN Providers
Abstract
This paper examines the administrative framework for combating online audiovisual piracy established by Italian Law No. 93 of 14 July 2023, as amended by Law No. 143/2024 and implemented by AGCOM Resolutions Nos. 189/23/CONS, 321/23/CONS, and 209/25/CONS. The analysis investigates the legal and procedural consistency of dynamic blocking orders issued via the Piracy Shield platform in light of recent Regional Administrative Court of Lazio judgments (Nos. 1223/2024, 14414/2024, 13201/2026, and 13202/2026) concerning cross-border DNS, VPN, and CDN providers (the Cloudflare dispute). It scrutinizes the jurisdictional divide between Articles 9 and 56 of Regulation (EU) 2022/2065 (Digital Services Act), the legal qualification of dynamic injunctions as deferred-adversarial enforcement acts, the calculation of statutory administrative fines based on worldwide turnover under Law No. 249/1997, and the outstanding challenges surrounding IP overblocking, post-execution review mechanisms, and defensive access to technical logs.
Key Legal Takeaways
- Primary Statutory Basis and Interim Powers: Law no. 93/2023 remedied the historical lack of statutory sanctioning powers identified by the Council of State ( Consiglio di Stato ) in Judgment no. 4993/2019, vesting AGCOM with urgent interim blocking powers to be executed within thirty minutes across networks and technical intermediaries.
- Allocation of Competences under the Digital Services Act: Article 9 DSA empowers national authorities to issue orders to act against specific items of illegal content on the basis of territorial harmful effects, whereas Article 56 DSA reserves exclusively to the Member State of establishment the supervision of systemic due-diligence obligations.
- Legal Nature of Dynamic Injunctions: Individual blocking tickets generated through the Piracy Shield platform do not constitute autonomous challengeable administrative measures, but rather operate as executive acts updating and implementing the original interim order subject to deferred adversarial review.
- Fines Calculated on Worldwide Turnover: Pecuniary administrative penalties under Article 1(31) of Law no. 249/1997 are lawfully assessed against the operator's consolidated worldwide turnover, ensuring proportionality and effective deterrence vis-à-vis foreign Big Tech intermediaries.
