The Italian media landscape is characterised by the dominant role of television in comparison with other media platforms; television consumption is still very high, while press circulation is limited. A rise in the provision of information and entertainment services on the internet, which is becoming increasingly popular among users, has recently been observed.2
As happens in other countries, video on demand subscriptions are increasing, and the number of subscriptions is getting closer (exceeding it in the forecasts) to that of pay-TV.3 Many traditional media companies are looking to consolidate and collaborate as they battle against Netflix and Amazon’s rapidly growing audiences.4
The latest and most prominent legal developments in the media and entertainment sectors in Italy are as follows:
- the introduction of Law No. 220 of 14 November 2016, ‘Regulation of cinema and audiovisual works’, which achieved a reform that had been expected in Italy for over 50 years, with the creation of an autonomous fund for the support of the film and audiovisual industry. The implementation of the reform required the issuing of various acts on the numerous aspects of the Law, from the management of the cinema and audiovisual fund to the regulation of tax credits, which required the consultation with or the agreement of other administrations.5 The most recent interventions for cinema and audiovisual are contained in the 2019 Budget Law and in Decree-Law No. 59/2019 (then converted into Law No. 81/2019);6
- within this framework, on 12 December 2018, the Communication Regulatory Authority (AGCOM), by way of Resolution No. 595/18/CONS, issued the Regulation governing programming and investment obligations for the promotion of European works and works by independent producers.7 On 22 January 2019, the Regulation was amended by AGCOM Resolution No. 24/19/CONS to take into account the modifications provided for by the 2019 Budget Law,8 which had delayed the entry into force of some of the obligations;
- following the liberalisation of the copyright intermediation market,9 the Italian Competition Authority (AGCM), with a decision of 25 September 2018, held the Italian Society of Authors and Publishers (SIAE) liable for abuse of dominant position for its conduct following the controversial entry into the Italian market of its competitor Soundreef;10 and
- the EU General Data Protection Regulation 2016/679 (GDPR) became applicable in all Member States on 25 May 2018. Legislative Decree No. 101 of 10 August 2018 was published in the Italian Official Gazette on 4 September 2018, and entered into force on 19 September 2018. The Legislative Decree intends to align the Italian data protection framework with the provisions of the GDPR and therefore introduces substantial changes to Legislative Decree No. 196 of 30 June 2003 (the Italian Privacy Code).
II LEGAL AND REGULATORY FRAMEWORK
The general legislation on radio and television services is contained in the Consolidated Text of Audiovisual Media Services (AVMS Code), as amended by Legislative Decree No. 44/2010, which implemented Directive 2007/65/EC, which was subsequently replaced by Directive 2010/13/EU and by Legislative Decree No. 204 of 7 December 2017, which amended the provisions concerning promotion of European works.11
In view of the value of competition and pluralism in the media sector, Italian legislation prohibits achieving and maintaining dominant positions, considering the resources included in the integrated communications system (SIC). The SIC is defined in Article 43 of the AVMS Code as the economic sector determined by the process of convergence between traditional broadcasting, newspapers and magazines, publishing (also via the internet), radio and audiovisual media services, and cinema and advertising, both above and below the line. Companies registered as communications operators may not amass, either directly or indirectly, more than 20 per cent of the total revenue of the SIC.12
The public service broadcasting framework in Italy is represented by several legal provisions,13 according to which the public service is entrusted to a concessionaire on the basis of a 20-year agreement between the state, represented by the Ministry for Economic Development, and the broadcaster, namely Radiotelevisione Italiana (RAI).14 The agreement provides a general framework, while further provisions on duties and rights of the concessionaire are provided by the AVMS Code and the contract of public service, signed every three years by the Ministry and the public service broadcaster, on the basis of guidelines determined by AGCOM.15 The contract of service is very specific and detailed, defined every three years in relation to the development of the market, the technological progress and the changing needs on a cultural, national and local level.
On 28 December 2015, the Italian parliament passed Law No. 220 of 2015, reforming the statutory framework for the official broadcasting agency of the Italian government and the public broadcasting and television service in Italy.
For print media, the reference regulatory framework is the same as online‐only news outlets. The most relevant acts are Law No. 416/1981 (first organic act), later modified and complemented with Laws Nos. 67/1987, 250/1990 and 62/2001. This set of laws, together with other acts, also supports the press by providing for a funding system (direct or indirect) that was recently improved with Law No. 198 of 26 October 2016. This Law defines online newspapers with well‐defined requirements for the first time. Moreover, Legislative Decree No. 70 of 15 May 2017 redefined the regulation on direct funding for newspaper and periodical publishers.16
Another important reference is the AVMS Code, which provides for online advertising revenues, which are the main source of income for online publishers. On an annual basis, AGCOM analyses advertising revenues as part of its activities for the protection of pluralism.17
Freedom of expression and freedom of the press are protected by the Italian Constitution of 1948 in its Article 21, which sets forth: ‘Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication’.
Article 10 of the European Convention of Human Rights provides the right to freedom of expression and information, subject to certain restrictions that are ‘in accordance with law’ and ‘necessary in a democratic society’. This right includes the freedom to hold opinions, and to receive and impart information and ideas.18
The Italian Constitution does not specifically provide for copyright protection. However, the constitutional protection of copyright can be inferred from the combined provisions of Articles 2, 9, 21, 33 and 42. Some rules concerning copyright also appear in Articles 2575 to 2583 of the Italian Civil Code, which, however, reproduce the key rules contained in Copyright Law No. 1941/633. The Copyright Law has been amended several times upon approval of new international conventions and EU Directives relating to the protection of copyright and related rights.
Italy is a party to several international treaties and conventions on the national treatment of foreign works.19
With respect to digital and online content, the E-Commerce Act implements the EU E-Commerce Directive in Italy.20 Articles 14 to 17 of the Act govern, among other things, the internet operators’ liability. More generally, Article 1 of the Copyright Law grants protection to all intellectual works of a creative nature, whatever their means or form of expression. The publication of works online is believed to require a level of protection equal to publication in traditional media. Moreover, the Copyright Act, as amended, incorporates the provisions of the EU Copyright Directive (2001/29/EC).21
The main regulators entrusted with the media and entertainment sectors in Italy are:
- AGCOM, an independent and ‘convergent’ authority. AGCOM has authority to regulate and monitor the press, broadcasting, electronic media and telecommunications sectors. The profound changes brought about by the digitalisation process, which has ensured the uniform broadcast of audio (including voice), video (including television) and data (including internet access), are the basis for the choice of convergent model, as adopted by the Italian legislator and shared by other sector authorities, such as the Office of Communications in the UK and the Federal Communications Commission in the United States;
- the Ministry for Cultural Heritage and Activities (MiBAC) General Directorate for Film with jurisdiction over the cinema and audiovisual sectors and responsible for all public functions relating to the development, production and distribution of films and audiovisual works. It administrates the fund for the development of investment in the cinema and audiovisual sectors, providing support in the form of tax credit schemes, automatic subsidies, promotion subsidies and selective subsidies for film production, distribution and promotion; and
- the Italian Data Protection Authority, an independent authority dealing with the protection of personal data of individuals.
III FREE SPEECH AND MEDIA FREEDOM
i Protected forms of expression
The constitutional right (Article 21) of the individual to express his or her own thoughts ‘by any means’ has traditionally been interpreted, on the one hand, as the ‘active’ right of the individual to have access to any form of mass media in order to express any thought that he or she might deem worthy of diffusion and, on the other hand, as the ‘passive’ protection of the same freedom; that is, the right of everyone to have access to information that is as correct, impartial and complete as possible. In other words, depending on the standpoint of the subject of reference, the right of expression can be conceived as freedom to inform, freedom to seek information and right to be informed.
The interpretation of Article 21 gives rise to the following principles:
- the right includes the expression of opinions in any form and through any media without limitation, unless constitutional values are jeopardised;
- there is a ‘negative’ side of this right: the right not to express thoughts and opinions against one’s own will is provided for; limits to this negative freedom exist in case they become necessary to guarantee public order; and
- the ‘active’ side of right or freedom to inform, is the principle that guarantees the dissemination of information and opinions, and it includes:
The limits to the freedom of expression are those expressly declared or referable to the Constitutional Charter and are:
- morality, the only limit expressly provided for by the Constitution for all manifestations of thought (including those relating to shows, such as theatre and film), enunciated in the last Paragraph of Article 21 of the Constitution;25
- the right to confidentiality, to be applied indiscriminately to all media, as well as social networks or private forums;26
- secrets, such as state, official, investigation, professional and industrial secrets; and
- honour, to be understood both as dignity (the violation of which gives rise to insult) and as reputation (which, if violated, gives rise to defamation).27
Hate speech is an issue of growing concern in Italy, which is further exacerbated by a number of factors: the spread of comments in online forums and on articles and social media platforms that incite hatred and violence; the surge in migrants and refugees arriving from different countries; and the strong tones used by political parties and movements within public debates.
There are several relevant laws that can be used to respond to hate speech in the media, but the application and interpretation of the existing hate speech provisions contained in criminal law are also inconsistent. Italian courts often consider the racial or ethnic bias as an aggravating circumstance in cases of criminal defamation, or consider them under the crime of ‘criminal conspiracy’ carried out by organised groups on the internet via blogs or social media. Despite strong protection of both the right to freedom of expression and equality in Italian law, the existing legal framework on hate speech does not fully comply with international human rights standards.28 In addition to protections available under criminal law, victims of hate speech can either initiate proceedings within the criminal trial to claim compensation for damages or pursue a separate civil defamation lawsuit. Administrative pecuniary sanctions are imposed in cases of defamation of religion or blasphemy, and a system of police warnings was established by a recent law protecting minors against cyberbullying.29
The applicable media legislation prohibits all content that contains ‘incitement to hatred in any way motivated by’ or that ‘instigate intolerant behaviours based on’ differences of race, sex, religion or nationality.30
On 22 January 2019, AGCOM launched a public consultation on a draft regulation aimed at fostering the protection of human dignity and the principle of non-discrimination, as well as combating hate speech. The scope of the application of the draft regulation includes both audiovisual media service providers and video-sharing service providers.31
The rights of journalists to gather information in order to inform the public on matters of general interest should be balanced with other rights protected by the Constitution.
The ‘Consolidated text of the duties of the journalist’ is aimed at harmonising the previous documents on ethical rules relating to the exercise of the profession of journalism, and entered into force on 3 February 2016 (the text was updated on 22 January 2019).32
The processing of data by journalists is free. The journalist may also process and publish particular and judicial data without having to obtain the consent of the person concerned, provided that two essential requirements are met:
- the data has been collected in a lawful and correct manner (principle of lawfulness); and
- the dissemination of data shall take place within the limits of the essentiality (principle of essentiality) of the information concerning facts of public interest.
The journalist must avoid any artifice and undue pressure when collecting information and ambiguities in the drafting of the article.33
In assessing the legitimacy of the publication of the news, it is also important ‘how’ the news was sought. At the point of collecting information, journalists must advise interlocutors or interested parties of his or her identity, profession (the journalist may not reveal his or her profession if this may endanger his or her own safety or the performance of the information function) and the purpose of collecting the information. This assumption must be assessed on a case-by-case basis, verifying whether the methods of collection and dissemination are proportionate with respect to the information purpose pursued and not otherwise achievable.
The Italian Criminal Code, after Articles 614 and 615 (respectively, violation of domicile and violation of domicile committed by a public official), regulates, under Article 615 bis, ‘illicit interference in private life’, to deal with new types of aggression made possible by new technologies, protecting ‘home confidentiality’. The aim is to safeguard the privacy that would be disturbed in the case of disclosure of what is happening in the home environment.
In particular, Article 615 bis of the Criminal Code contemplates two distinct cases, corresponding to two different types of aggression against home privacy: indiscretion and disclosure.34
It is, however, worth mentioning further incriminating cases that may concern the journalist, such as Articles 617,35 617 bis and 618 of the Criminal Code, which punish ‘anyone who, except in the cases permitted by law, installs apparatus, instruments, parts of apparatus or instruments in order to intercept or prevent communications or telegraphic or telephone conversations between other persons’.36
iii Freedom of access to government information
The right to access administrative documents was introduced in 1990, but required a ‘legal interest’, meaning it was often difficult for journalists to get information needed for investigative reporting.37 The Freedom of Information Act came into force in December 2016.38
The new legal framework follows the general principle of free access to information and the possibility of appealing a negative response from the administration with a fast and free procedure. Nevertheless, concerns remain as exceptions to access to information foreseen by the law are very general and could be broadly interpreted. As a consequence, Italian journalists mainly rely on procedural acts from trials and investigations in reporting.
In December 2017, a controversial law that forbids the publication of wiretapped conversations unless they are deemed ‘relevant’ for a criminal trial was introduced.39
Police must seal any ‘irrelevant’ excerpts, however newsworthy they may be, as secret. Journalists complained that the new law would hamper their ability to investigate and publish stories in the public interest.
According to the law, individuals can request information from public bodies without charge. If public bodies deny access to any piece of information, they must provide a reason. An independent monitoring observatory will be tasked with overseeing the law’s implementation, and the country’s independent anticorruption authority will issue guidelines, including for cases where public bodies may provide summary information instead of full data.40
iv Protection of sources
The right or duty of journalists to protect their confidential sources is provided by Article 2, Paragraph 3 of Law No. 69 of 1963 on the Organisation of the Journalistic Profession, and by the Consolidated text of the duties of the journalist. The violation of the professional duty entails the disciplinary liability of the journalist.41 Moreover, the Data Protection Code acknowledges journalists’ right not to disclose their sources as a prevalent right in respect of the right of the persons to know the origin of personal data related to them.
According to Paragraph 3 of Article 200 of the Code of Criminal Procedure, the professional secrecy is limited to the name of the persons from whom the journalist has received fiduciary information, with the particularity, compared with other categories protected by secrecy, that the judge may order the journalist to indicate the source of the information in his or her possession where such information is essential for the investigation and where it is necessary to ascertain the identity of the source.
The right of journalists not to disclose their sources is also ensured by other provisions. Article 271, Paragraph 2 of the Code of Criminal Procedure establishes the discipline of wiretapping for journalists. The provision prohibits the use of the content of conversations concerning information or facts known by reason of profession or office, unless the person of interest disclosed the information in a deposition or in other ways. In relation to invasive measures ordered by the judicial authority, journalists are entitled to oppose the professional secrecy towards the request of public authorities to produce acts, documents, computer programs, data and information.42
As recently affirmed by the Criminal Court of Cassation, evidential seizure of memory of a personal computer belonging to a journalist who has objected to professional secrecy is permitted only where it is considered that the secrecy is unfounded and that the acquisition is necessary for the investigation; however, the investigative activity must be conducted in such a way as not to compromise the journalist’s right to the confidentiality of his or her correspondence and sources.43
v Private action against publication
Anyone who considers him or herself defamed by a newspaper article or by a piece of news published on the web (whether it be information sites, blogs, social networks or other) is faced with a not always easy alternative, between the two different forms of protection offered by the Italian legal system: the injured party can submit a criminal complaint and ask the judge to prosecute the alleged offender, with the aim of then asserting his or her claim for damages in a criminal trial; or he or she can act directly against the offender, suing him or her before the civil judge and asking for compensation of damages.
Each choice has its pros and cons; for example, filing a complaint and bringing the alleged offender before a criminal judge may constitute for the latter a reason of serious concern, which could lead more easily to a settlement, at least initially. The path of criminal prosecution is the most economical remedy for the complainant because there is no cost to be paid to the state to initiate the proceedings. The criminal choice also appears simpler as regards the burden of proof because it is substantially limited to the complainant exposing his or her version of the facts in the complaint, which the public prosecutor in fact makes his or her own decision on, while it is up to the alleged offender to defend him or herself by proving either the absence of the offence or that what is being communicated, although defamatory, has a cause of justification (including, normally, the right to report or the right to criticise).
On the other hand, the choice of criminal procedure is not without risk for the injured party. First of all, there is the danger that there will never be a trial because the public prosecutor in charge of the investigation could consider that there is no offence in the concrete case and, therefore, formulate a request for filing (which submits the case to the scrutiny of the judge); or it may be that the actual trial will start only after a long time because the same public prosecutor has had other emergencies or has shown very little interest in prosecuting that kind of crime: in this case, in addition to the prescription, the risk is that the judgment on the offence is in some way influenced by a diminished perception of the offence after a long time, which may result in a lower compensation recognised by the judge.44 However, a possibility is that, at the end of the trial, the judge limits him or herself to pronouncing a criminal judgment against the offender without quantifying the damage in favour of the civil plaintiff, leaving the parties to a new and further trial limited only to the quantification of the damages before the civil court, entailing an additional economic burden for the offended party and a significant lengthening of time. Finally, the criminal judge may define not only the penalty imposed on the offender but also the amount of compensation due to the injured party, but may advise that the judgement is not enforceable and therefore remains suspended pending further appeal.45
No option, therefore, is preferable to the other, nor free from risks and side effects.
The only exception to the principle of the autonomy of the two proceedings is represented by the possibility that the injured party first constitutes a civil party in the criminal proceedings and, subsequently and without revoking this constitution, initiates an independent case: only in this case will the civil proceedings necessarily remain suspended pending the definition of the criminal proceedings.46
Italy remains the only EU country to sentence journalists to imprisonment for defamation.47
In several recent defamation cases, the European Court of Human Rights found Italy in violation of Article 10 of the European Convention on Human Rights.48
In the case of publication of unauthorised material, the interested party has the right, following the entry into force of the GDPR,49 to oppose the treatment, and also to request:
- the right to oblige or delete: this right allows the interested party to also obtain the cancellation of his or her data from historical archives and web pages; and
- the right to the updating of data concerning him or her, especially when, following the conclusion of a trial or preliminary investigation, the accused or investigated person is acquitted of the charges against him or her, which provides for ‘cleaning up’ his or her name in terms of the unpleasant association with events recorded in the judicial chronicle.
vi Government action against publication
Rather than engaging in direct bans of specific content, the Italian government has recently encouraged initiatives of soft censorship with the objective of influencing news coverage of state bodies and officials and their policies.
The former vice president of the Italian Council of Ministers and leader of the 5-star Movement, Luigi Di Maio, wrote on Facebook on 12 September 2018 that he was planning ‘a reduction of indirect public contributions’ to the press in the next state budget.50 He added that he was ‘preparing a letter to state-owned companies to ask them to stop paying newspapers’ by buying advertising space. The National Federation of Italian Journalists denounced the minister’s announcement, saying his proposal amounted to intimidation and was aimed at establishing a ‘one-track thinking’ favourable to the government in the media.51
Italian journalist and writer Roberto Saviano was sued on 20 July 2018 by the former Italian Minister of Interior and leader of right-wing League party, Matteo Salvini, on defamation. The Minister accused Saviano of accusing him of an alleged support for the mafia. Earlier, Salvini called on Twitter for reviewing current police protection for journalists, to which Saviano responded in calling Salvini ‘a buffoon’ and ‘minister of the underworld’, followed by criticism of his immigration policies.52 The journalist has been critical towards current migration policy applied by the current office of the Minister of Interior and the League party.
IV INTELLECTUAL PROPERTY
i Copyright and related rights
The Copyright Law provides that protection should concern all the intellectual creative works belonging to literature, music, figurative arts, architecture, theatre and cinematography, no matter the way and type of expression (Article 1, Copyright Law).53
Under Italian law, the authors of copyrighted works are granted with moral and economic rights.
Moral rights are enjoyed by the author of the work personally, and cannot be waived, licensed or assigned. In fact, the author has the right to be identified as the author and to object to any distortion, mutilation or any other modification of, and other derogatory action in relation to, the work that would be prejudicial to his or her honour or reputation. Moreover, the Italian law gives the author the choice to withdraw his or her work from the market whenever serious moral reasons arise.
Generally speaking, the one who claims to be the author is such unless it is proven otherwise.
Under Article 3 of the Copyright Law, daily newspapers and periodicals enjoy protection as collective works,54 which are protected as original works. The author of a collective work is, according to Article 7 of the Copyright Law, ‘the person who organises and directs its creation’; that is, with specific regard to journalism, the director, whose creative contribution consists in the work of selecting and coordinating the elements that constitute the newspaper or the magazine for which he or she is responsible. Article 38 of the Copyright Law reserves the right of economical exploitation of the collective work to the publisher, without prejudice to the status of author attributed to the director (chief editor) as stated in Article 7 or to the right of individual contributors to use their own work for publication in other newspapers or magazines, provided that they observe existing agreements with the publisher of the collective work and, in any case, Articles 39 to 43 of the Copyright Law.
The right of economic use of a work lasts for the author’s whole life and for the 70 years following his or her death (Article 25, Copyright Law).55
For some types of works, the duration of copyright varies; in particular, for work that benefits from related or sui generis rights.
The most important related rights include:
- the rights of the producer of cinematographic or audiovisual work;56
- the rights of performers;57
- the rights of those who practice radio or television broadcasting activity; and
- the rights of the music producer.58
On 16 October 2018, AGCOM approved Deliberation No. 490/18/CONS, which introduces some modifications and integrations to the Regulation on copyright enforcement in electronic communications networks.59
These were introduced according to the new powers attributed to AGCOM on the basis of Article 2 of Law No. 167/2017, to further combat copyright infringement with interim protective measures and measures for preventing reiteration of the offences.
According to the changes introduced by the Deliberation, rights holders can also apply for interim protective measures, under a procedure with tighter deadlines and based on a preliminary assessment of facts, where there is an alleged threat of imminent, serious and irreparable harm; and measures against the reiteration of violations already declared by AGCOM, applicable after the issuing of AGCOM orders under an ordinary or special procedure, on the basis of a mere notice and without the need to start a new procedure.
The targets of AGCOM’s intervention – in cases of online copyright infringement – are service providers, uploaders of infringing content and website operators hosting infringing material, rather than users. Rights holders are entitled to file – through online forms – complaints of online copyright infringement with AGCOM.
ii Personality rights
Under Italian statute law, a person’s name and image pertain to an individual’s personal sphere, which prevents any unauthorised use. These publicity and image rights benefit from severe protection granted by both the Civil Code and the Copyright Law.60 In addition, unauthorised use may easily result in a criminal offence.61
Hence, the rule of law is that a person’s image may be used only on the interested individual’s consent.
Use without consent may occur (as an exception) only if set by law and on condition that such use does not prove prejudicial to the dignity or reputation of the represented person.62 While an individual’s ‘personality rights’ are not disposable (i.e., may not be transferred to others or cannot be the object of contractual transactions (e.g., you cannot sell your name)), economic aspects relating to the use of a person’s name or image obviously imply the involved individual’s consent, which is usually achieved through contractual agreement (and against compensation).
These economic aspects related to personality rights quite frequently end up before courts, especially when a non-authorised use for advertising – or in a broader sense, commercial – purposes occurred, determining such use as prejudice and having damaging effects, as the represented person is deprived of the remuneration that he or she could have achieved by giving consent. In addition, a significant number of lawsuits originate from reports of a nosy press dwelling deep into a celebrity’s privacy sphere.
The Court of Cassation, with Judgement No. 1875 of 2019, upheld the appeal of a well-known showman against a publishing house for the publication of some photos ‘stolen’ while he was with his partner inside his villa. With the above sentence, the Supreme Court traces the principles of case law on the right to the image of celebrities.
The Court clarified that the abusive publication, when it leads to the loss, by the right holder, of the right to offer to the market the use of his or her own portrait, gives rise to the corresponding prejudice. This prejudice is not excluded by the possible refusal of the injured party to allow anyone to publish the specific portraits illegally used, since this refusal cannot be equated to a kind of abandonment of the right, with consequent fall into the public domain.
V COMPETITION AND CONSUMER RIGHTS
Some of the latest enforcement activities in the competition and consumer protection regime affecting the media and entertainment sector include:
- an AGCM decision of 7 December 2018, following an investigation launched in April 2018 that fined Facebook Ireland Ltd, and its parent company Facebook Inc, for engaging in two unfair commercial practices in violation of the Italian Consumer Code.63 This decision is likely to open a debate about the relationship between data protection laws and consumer protection laws and how far the competition authorities can go in scrutinising business models based on the processing and profiling of personal data. The commercial practices challenged by the AGCM concerned:
- the way Facebook presents its social network service to prospective users who are in the process of registering in the service that was considered as misleading for consumers in regard to the free nature of the service, without properly informing them about the fact that Facebook collects, processes and uses their personal data for commercial purposes; and
- Facebook’s transmission of registered users’ data, without their prior express consent, from the social network platform to third-party websites or apps and vice versa, for the use of such data for profiling and commercial purposes. This mechanism was considered in violation of the Italian Consumer Code, prohibiting the adoption of aggressive commercial practices by the professional, because it may, through undue influence, significantly impair the average consumer’s freedom of choice, thus causing him or her to make a transactional decision he or she would not have taken otherwise; and
- an AGCM decision of 20 May 2019 concluding its investigation into the acquisition, by Sky Italia, of the digital terrestrial television (DTT) technical platform, R2, from Mediaset Premium.64 R2 provides technical and administrative services for the DTT broadcasting of pay-TV channels, which enable the packaging of a retail pay-TV offer, such as the cryptography of the signal, and administrative services. According to the AGCM, the acquisition of R2 was economically and functionally intertwined with a set of commercial agreements that were entered into between the two parties in March 2018. These related, in particular, to the licensing of MP’s pay-TV channels to Sky, and the transfer to Sky of the rights to the use of DTT’s logical channel numbering, in addition to transitory agreements for the de facto exclusive provision of the technical platform services. Considering these interconnected agreements, the AGCM maintained that, overall, this concentration was equivalent in its substance to the suppression of Mediaset Premium as a competitor.
VI DIGITAL CONTENT
Pursuant to Article 16 of the Italian E-Commerce Act, hosting service providers are exempt from liability where third-party rights are violated on their online platforms as long as the hosting service provider:
- has no knowledge of the illegal activity or information; and
- acts immediately to remove the illegal material once made aware of its infringing nature.
Italian courts have shown a controversial attitude regarding the legal regime governing liability of hosting providers. Some courts (especially the Court of Milan and the Court of Turin) have maintained that elements such as the organisation of content or the arrangement of internal search engines by internet service providers (ISPs) do not imply an editorial activity; therefore, there would be no reason for excluding liability exceptions as provided for in the E-Commerce Directive. Other courts (most notably, the Court of Rome) have endorsed a different approach, considering ISPs as active providers; that is, providers that, being ‘more sensitive’ to third-party content, would have access to a limited exemption from liability.
On 19 March 2019, the Court of Cassation issued its judgment in the appeal filed by RTI, one of the main Italian broadcasters, against the landmark Milan Court of Appeals’ decision issued in January 2015 in the RTI v. Yahoo! case.65
The Court of Cassation, taking into consideration the prevailing interpretation of the Court of Justice of the European Union (CJEU), recognised the existence of a distinction between active and passive hosting providers. The court established the principle of law according to which an active hosting provider is the provider of information society services that carries out an activity beyond a mere technical, automatic and passive service and, on the contrary, carries out an active conduct, cooperating with others in the commission of the illicit activity; thus, the active hosting provider cannot benefit from the safe harbour liability regime established by Article 16 of the E-Commerce Act and its liability shall be ascertained on the basis of the general rules on liability.
To this end, the court listed some elements that suggest that the hosting provider is carrying out an active role.
The court then dealt with the issue of liability, laying down the principle that in the context of the information society services, the hosting provider’s liability exists upon the provider that failed to immediately remove the unlawful pieces of content as well as when it kept hosting them, when all the following conditions are met:
- the provider is aware of the illicit activity committed by the recipient of the service because it received notice from the rights holder or from third sources;
- the unlawfulness of the recipient’s conduct is reasonably verifiable with the same degree of diligence that it is reasonable to expect from a professional internet operator in a certain historical moment, inasmuch as the provider is grossly negligent if it fails to ascertain the unlawfulness of the content; and
- the provider has the possibility to usefully act because it was made aware in a sufficiently specific way of the unlawful pieces of content that should be removed.
In a different proceeding, the Court of Rome established another important principle by ruling that platforms can be held liable for ‘culpable cooperation by omission, for the violation of copyright’ in the event that they fail to take immediate action and comply with the specific obligation of ‘immediate removal’. In such cases, platforms will be subject to a penalty for any future infringement subsequent to the judgment itself.66
The Court of Rome has also recently upheld the orientation of the CJEU regarding violations of authors’ rights committed through the linking technique.67 The Court recognised that the publication of hyperlinks without specific authorisation from the owner must be regarded as unlawful, as it constitutes an act of communication of the work ‘to a new public other than that originally authorised by the plaintiff’. Therefore, even the ‘passive hosting provider’ must take action as soon as it receives the news of the wrongdoing committed by the users of its service in order to allow the prompt removal of the illegal information entered on the site or to prevent access to such, as it is required to conduct its business with the diligence reasonably expected to detect and prevent the illegal activities reported.68
VII CONTRACTUAL DISPUTES
The main legal issues and areas of litigation in the cinema and TV production market typically relate to the ownership of intellectual property rights in the underlying work, the unauthorised use of works or unlawful exploitation of the economic rights over the work, and the contractual relationships between producers, distributors and film theatre sights over communication of the programme and broadcasting.
For print and electronic publishing, the main legal issues concern the ownership of rights, infringement of reprographic rights and the liability of authors and publishers for content.
Many legal issues arising in contracts for the exploitation of rights concern the fulfilment of contracts; in particular, producers paying correct royalties to the artists, and publishers paying correct royalties to authors.
In a recent judgment, the Court of Rome ruled with particular rigor about compensation for the damage paid to the producer, with regard to one of the main obligations provided for in the contracts for the distribution of cinematographic works, namely that relating to the minimum number of theatres – or screens – in which the screening must take place.
With reference to the Italian distribution of the film Dracula di Dario Argento, the producer had accused the distributor of having failed to fulfil its contractual obligation to screen the film in Italy on at least 200 screens in the ‘città capozona’,69 as well as to deliver the accounting statements and pay the amounts due within the terms provided for in the contract.70
VIII YEAR IN REVIEW
On 14 November 2018, MiBaC announced an upcoming Ministerial Decree adopted pursuant to Law No. 220/2016, representing the first law intervention in Italy on theatrical windows.71 Previously, this matter had been ruled in accordance with a well-established practice, which the Decree enshrines, basically, into law. The scope of the Decree is limited to Italian works and does not include foreign productions, for which the aforementioned gentlemen’s agreement remains applicable. Between a film’s first screening in theatres and its availability on other platforms, a time lag of 105 days is to be respected. However, the Decree introduces some exceptions to this period.72 In the case of violations of these provisions, the productions might not be admitted for tax credit or other fiscal or financial benefits that exist for cinematographic productions.
On 6 March 2019, AGCOM adopted Resolution No. 74/19/CONS, by which, in accordance with Law No. 220/2016, it established the criteria to categorise audiovisual works delivered via the internet and video games, to protect minors from inappropriate content.73 Categorisation is a prerequisite for the audiovisual works delivered via the internet and video games to be distributed through electronic communication services and networks.
It is the responsibility of the relevant providers to ensure that audiovisual works delivered via the internet and video games conform to the categorisation and to the relevant criteria established by AGCOM.74
On 1 February 2018, AGCOM published on its website the guidelines to ensure equal treatment of parties or candidates on online platforms in view of the general election that took place on 4 March 2018. The guidelines were the result of activities carried out by the working group set up by AGCOM, with the participation of major stakeholders, including representatives from online platforms and newspapers.
With a landmark decision, the Court of Appeals of Rome clarified ISPs’ liability limits in the case of online defamatory content.75 If no order is issued by the competent administrative or judicial authority, there cannot be any liability under the provisions of Legislative Decree No. 70 of 2003 that implemented the E-Commerce Directive in Italy.76 The Court of Appeals draws a clear and specific distinctive line between copyright infringement cases and defamation cases. When a suit is filed for libellous contents, the determination on the validity of the infringer’s claim is more difficult than in a copyright infringement, making the intervention of a third party necessary (i.e., the competent judicial or administrative authority considered by the E-Commerce Decree).
In the near future, Italy will face a delicate process of transposition of European legislation in the media sector:
- the new European Directive (EU) 2018/1808, which amends and updates the EU’s Audiovisual Media Services Directive, entered into force on 18 December 2018 and must be implemented into the national legislation of EU Member States by 18 September 2020; and
- on 26 March 2019, the European Parliament approved the new European Directive on copyright in the Digital Single Market. This Directive must be transposed in Italy by 7 July 2021.77
The challenges of AI78 and e-privacy will also be faced by the Italian legislators in coming years.
1 Valentina Mayer is the founding partner at Mayer Lex.
2 According to Reuters Institute Digital News Report 2019, since 2013, the printed press in Italy alone has lost 34 per cent in opposition to a substantial doubling of the use of social media. In Italy, the use of television for information remains significant and, at the same time, ‘online news’ consumption has not increased as it has abroad.
3 According to a research commissioned by Sky, Mediaset, Discovery and Vodafone, and developed by Ernst & Young in 2018, subscriptions to online services will soon exceed those to pay-TV.
4 In 2018, after a bidding war that included the Walt Disney Company, US media and telecoms conglomerate Comcast acquired the entirety of Sky. Moreover, the two historic competitors, Sky and Mediaset Premium, entered into an agreement providing that all Sky subscribers will be able to access with their subscription, and without additional costs, Mediaset Premium’s nine pay channels. In June 2019, Mediaset announced that it planned to merge with Mediaset España and create a new Dutch-listed company called Media for Europe.
5 The reform entered into force in September 2017 and is still ongoing. To date, it has required three legislative decrees, 20 implementing decrees, a protocol of understanding between the Ministry of Cultural Heritage and Activities and Tourism (MiBAC) and the Ministry of Education, University and Research, and an act of understanding between MiBAC and the Unified Conference to implement its provisions.
6 In particular, the resources for the fund for the development of investment in the cinema and audiovisual sectors have been increased in 2019, and such increase has been allocated to incentives and tax benefits through the instrument of tax credits. New provisions have been introduced concerning selective contributions for cinematographic and audiovisual works and contributions for film and audiovisual promotional initiatives; and the composition of the Committee for the classification of cinematographic works and the rules governing the promotion of European and Italian works by providers of audiovisual media services have been redefined.
7 The Regulation was adopted pursuant to Article 44 quinquies of the Audiovisual Media Services Code (Legislative Decree No. 177 of 31 July 2005), as recently amended by Legislative Decree No. 204 of 7 December 2017 as part of the reform provided by Law No. 220 of 14 November 2016.
8 Law No. 145 of 30 December 2018.
9 A limited liberalisation in the market of copyright intermediation marked was provided by Legislative Decree 35/2017.
10 Competition Authority, Resolution of 25 September 2018 in proceeding A508, SIAE Copyright Intermediation Services.
11 This refers to Legislative Decree No. 177/2005 as amended in 2010, 2012, 2015 and 2017, which is also the national legal framework implementing the AVMS Directive, Directive 2007/65/EC, later replaced by Directive 2010/13/EU.
12 On 10 January 2019, AGCOM released Decision No. 9/19/CONS concerning the closure of the procedure for the assessment of economic dimensions of the SIC for 2017. Pursuant to Article 43 of the AVMS Code, AGCOM must periodically conduct a specific analysis to estimate the resources included in the SIC.
13 The main part of the provisions are in the AVMS Code, at Articles 45 to 49 quater, which were amended in December 2015 by the Stability Law, the yearly financial act, while other binding provisions can be found in Law No. 249/97, establishing AGCOM and its competencies, including public service broadcasting; a few articles of Law No. 223/90 on public service broadcasting fees; Law No. 103/75 regarding the right of access to programmes and protection for linguistic minorities; and Law No. 28/2000 regulating political communication and election campaigns.
14 RAI is the Italian state-owned public service broadcaster controlled by the Italian Ministry of Economy and Finance.
15 Pursuant to Article 25, Paragraph 3 of the service contract (as renewed for 2018 to 2022) between the Italian Ministry of Economic Development and the Italian public service broadcaster, RAI, a Commission composed of members of the Ministry and members of RAI was established with the task of drafting guidelines aimed at underpinning negotiations between RAI and representative associations of producers on the extension and the scope of the exploitation rights of audiovisual works for radio, television and multimedia platforms. The final version of the guidelines was approved in July 2019.
16 Now partially modified by the 2019 Budget Law (Law No. 145/2018, Article 1, Paragraph 90), providing, pending an organic review of sector discipline, for the abolition, or gradual reduction until abolition, of direct contributions in favour of certain categories of radio companies and newspaper and periodical publishers.
17 The regional administrative court of Lazio, in a judgment dated 14 February 2018 on Appeal No. 7964/2013 presented by Google Ireland Ltd and Google Italy Srl, underlined that the lawmaker provided that ‘. . . revenues from online advertising are to be considered among those relevant for the verification of pluralism in the advertising market’.
18 The European Court of Human Rights has shaped, in its numerous decisions on the present subject matter, basic principles and requirements with regard to Article 10 of the European Convention on Human Rights, which widely influenced today’s European media landscape.
19 In particular:
- the Berne Convention (ratified by Law No. 1978/399);
- the Rome Convention (ratified by Law No. 1963/866);
- the Geneva Convention for the Protection of Producers of Phonograms;
- the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (ratified by Law No. 1977/771);
- the Agreement on Trade-Related Aspects of Intellectual Property Rights (ratified by Law No. 1994/747);
- the World Intellectual Property Organization (WIPO) Copyright Treaty; and
- the WIPO Performances and Phonograms Treaty.
20 Legislative Decree No. 70 of 9 April 2003 transposed Directive No. 2000/31/EC into Italian legislation.
21 The Directive on the harmonisation of certain aspects of copyright and related rights in the information society has been recently amended by Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, intending to ensure a well-functioning marketplace for the exploitation of works and other subject matter, taking into account in particular digital and cross-border uses of protected content.
22 According to consolidated case law, the right to report is legitimately exercised when the following conditions are met: the objective truth of the published information; the public interest in the knowledge of the fact (relevance); and the formal correctness of the exhibition (self-restraint).
23 With regard to the boundaries between the right to report and the right to criticism, see the judgments of the Court of Rome Section I, No. 16689 of 29 August 2018, and No. 3941 of 22 February 2018.
24 With regard to the definition of right to satire and its limits, see the recent judgment of the Court of Cassation, civil court, Section I, No. 6919 of 20 March 2018.
25 Paragraph 6 of Article 21 of the Constitution reads: ‘Printed publications, shows and all other events contrary to morality are prohibited. The law establishes adequate measures to prevent and suppress violations.’ The concept of morality should be understood as referring to the definition of ‘obscene acts and objects’ provided by Article 529 of the Italian Criminal Code: acts and objects are considered ‘obscene’ if, according to common sentiments, they offend the sense of decency (excluding works of art and science, in reference to Article 33 of the Criminal Code).
26 The joint sections of the Court of Cassation (No. 19681 of 22 July 2019) have recently stated that, on the subject of the relationship between the right to confidentiality (in its particular connotation of the ‘right to be forgotten’) and the right to chronicle relating to events of the past, the judge – without prejudice to the freedom of editorial choice, which is an expression of the freedom of the press protected and guaranteed by Article 21 of the Italian Constitution – should evaluate the concrete and current public interest in mentioning the identifying elements of the people who were the protagonists of those facts and events. This mention must be considered lawful only if it refers to people who have the interest of the community in the present moment, both for reasons of notoriety and for the public role played; otherwise, the right of those concerned to confidentiality prevails with respect to events of the past that hurt their dignity and honour and of which the collective memory has been extinguished.
27 Article 595 of the Italian Criminal Code defines defamation as injuring the reputation of an absent person via communication with others. The penalty is imprisonment for up to one year. If the act of insult or defamation consists in the allegation of a specific fact, the potential penalty is increased to imprisonment for up to two years or a fine. If committed by means of the press or otherwise publicly, the penalty is a fine of at least €516 or imprisonment of from six months to three years. Penalties are also increased if the defamatory statement is directed at a political, administrative or judicial body or at a representative thereof or an authority constituted in college. Defamation is also considered a criminal offence under Law No. 47/1948 (the Press Law). According to Article 13 of the Press Law, defamation committed by the press is punishable by a fine or imprisonment of from one to six years. In order for defamation to be liable under the Press Law, it must involve an accusation of a fact.
28 In particular, the characteristics exhaustively listed in criminal law concerning the most serious forms of hate speech are limited to race, ethnic origin, nationality, or religion, and proposals to expand this protection have stalled in parliament.
29 Law No. 71 of 29 May 2017, ‘Provision to protect minors and to prevent and combat cyberbullying acts’.
30 See Article 32, Paragraph 5 of the AVMS Code. Special provisions on the protection of minors are established in the Code on TV and Minors, and incorporated by law. AGCOM is tasked with enforcing these provisions; however, it has limited powers to intervene and issue sanctions. For the most part, AGCOM only intervenes when violations regard the special provisions for the protection of minors.
31 AGCOM Decision No. 157/19/CONS of 15 May 2019.
32 Article 4 of the ‘Consolidated text of the duties of the journalist’ states that journalist shall apply the ‘Rules of ethics relating to the processing of personal data in the exercise of journalistic activities published, pursuant to Article 20, Paragraph 4 of Legislative Decree No. 101 of 10 August 2018 (Decision No. 491)’, provided for by Legislative Decree 196/2003 and subsequent amendments on the protection of personal data, which form an integral part of the Consolidated law on the duties of journalists to which it is attached. The rules have been recently verified by the Italian Data Protection Authority to assess their conformity with Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The rules of the codes of conduct constitute real secondary rules (soft law) of the legal system, on the basis of which the judges also decide on the legitimacy of the processing of personal data carried out for journalistic purposes or manifestation of thought.
33 See Court of Cassation Judgment No. 18006 of 9 July 2018.
34 The indiscretion consists in ‘whoever, through the use of instruments of visual or sound recording, unduly obtains news or images pertaining to private life taking place in the places indicated in Article 614’ (Article 615 bis, Paragraph 1, Criminal Code). Therefore, a criminal prosecution will be imposed on the photographer who, by means of telephoto lenses or similar means, captures the images of others when the persons portrayed are in their own home, or in their closed and fenced garden, or in another place not visible from the public street. Equally, it is punishable to use special microphones or bugs to capture news or conversations that take place in private places. The second case, much more interesting for the purposes of this chapter, consists in ‘whoever reveals or spreads, by any means of information to the public, the news or images obtained in the manner indicated in Paragraph 1 of Article 615 bis of the Criminal Code’ (Article 615 bis, Paragraph 2, Criminal Code). Therefore, each journalist who buys photographs or receives confidential information must ascertain that it has not been taken with the means prohibited by Article 615 bis of the Italian Criminal Code, otherwise he or she may also be indicted.
35 Punishing respectively: ‘the person who, having come to the knowledge of the contents of a correspondence not directed to him, which had to remain secret, without just cause, reveals it, in whole or in part’ and ‘the fact of whoever, fraudulently, takes cognition of a communication or conversation, by telephone or telegraph, between other persons or in any case not directed at him, or interrupts or prevents them’.
36 In addition, Legislative Decree No. 216 of 29 December 2017, which is aimed at strengthening the protection of the right to privacy of the aggrieved person from any third parties’ interference through the use of new technologies introducing Article 617 septies of the Criminal Code. The offence introduced by the Legislative Decree only covers the conduct of circulating audio and video recording, while the act of recording is not relevant per se from a criminal law perspective.
37 The general discipline on the right of access to administrative documents is provided by Law No. 241/1990, which was often misapplied, and resulted in frequent claims to administrative courts, which were time-consuming and costly.
38 Legislative Decree No. 97 of 2016, ‘Revision and simplification of the provisions on the prevention of corruption, publicity and transparency’, amending Law No. 190 of 6 November 2012 and Legislative Decree No. 33 of 14 March 2013, pursuant to Article 7 of Law No. 124 of 7 August 2015, on the reorganisation of public administrations, is an integral part of the process of public administration reform.
39 Legislative Decree No. 216 of 29 December 2017.
40 Watchdogs and rights groups noted that the law lists wide exemptions for information that may compromise state secrets, public order, national defence, international relations, the state’s economic and financial stability, or ongoing criminal investigations, and urged the government to refine this aspect. Furthermore, they noted that the law does not prescribe sanctions for public entities that refuse to answer requests.
41 According to Article 48 of Law No. 69 of 1963: ‘Anyone registered on the list or on the registry, guilty of facts inconsistent with the decorum and the professional dignity, or guilty of facts compromising its reputation or the dignity of the Association, shall be subject to the disciplinary procedure. The procedure starts ex officio by the regional or the inter-regional Council or also on request of the general prosecutor competent according to Article 44.’
42 Article 256 of the Code of Criminal Procedure.
43 Criminal Court of Cassation, Section VI, No. 9989 of 1 September 2018.
44 On this specific aspect, see the judgment of the Court of Cassation, Section III, No. 28084 of 26 June 2018.
45 On the other hand, acting in a civil court allows, first of all, a greater control over the course of the trial and its timing: besides unforeseeable events and depending on the different organisation of the various judicial offices, the duration of the trial can be predicted. From another point of view, there is no risk of the public prosecutor not adopting the accusatory approach put forward by the plaintiff and there is the certainty that a judge will rule on the case submitted to his or her examination. On the other hand, it is true that, in the event of an unsuccessful outcome, the economic risk is much greater because both the costs of the proceedings (the ‘unified contribution’, which must be paid at the time of registering a case and the value of which depends on the amount of compensation requested) and those incurred by the accused party to defend him or herself (i.e., the legal costs of the other party) are normally borne by those who brought, and lost, the case.
46 Civil Court of Cassation, Section VI, No. 28499 of 30 October 2017.
47 The review of the defamation legislation was prompted by several defamation cases in which journalists and editors received prison sentences. Recently, the Court of Salerno upheld the objection of unconstitutionality raised by the Campania Journalists’ Union in the trial for defamation against a journalist. According to the Union’s view, which the judge adopted, the imprisonment of journalists provided for in Article 13 of the Press Law and Article 595(3) of the Criminal Code (defamation by the press) is in breach of Articles 3, 21, 25, 27 and 117(1) of the Constitution in relation to Article 10 of the European Convention on Human Rights.
48 See for example, the judgment by the European Court of Human Rights (Second Section), Belpietro v. Italy, Appeal No. 43612/10 of 24 September 2013.
49 And the consequent amendments made to Legislative Decree 196/03 by Legislative Decree 101/18.
50 On 29 December 2018, the Italian parliament confirmed the government’s 2019 budget. Among other things, the budget includes a progressive reduction of direct subsidies to safeguard media pluralism (minus 20 per cent in 2019, minus 50 per cent in 2020 and minus 75 per cent in 2021). The public funding to media pluralism is supposed to be totally abolished by 2022.
51 Source: Council of Europe Platform to promote the protection of journalism and safety of journalists.
52 In his work, Saviano exposed the influence of the Camorra mafia in the Campania region of Italy in a publication Gomorrah (2006). Saviano has collaborated with local and international newspapers in line with his work on the Camorra crime syndicate and organised crime in general. Due to the numerous death threats Saviano received because of his work, he is under regular police protection.
53 ‘Even a work that is the product of a “creative act”, also a minimum one . . . can be protected.’ To be protected, the work needs to have a form of expression. Simple ideas are not protected. Ideas are freely appropriable and there is no need to ask for an author’s permission..
54 Defined as those works formed by the ‘assembling of works or parts of works, and possessing the character of a self-contained creation resulting from the selection and coordination with a specific literary, scientific, didactic, religious, political or artistic aim, such as encyclopedias, dictionaries, anthologies, magazines and newspapers’.
55 Even if the rights in works were assigned on the basis of a publishing contract with a publishing house, aside from the fact that the longest duration of such contract is 20 years (Article 122, Copyright Law), it has, as its object, the rights of use belonging to the author ‘with the content and the duration decided by the law’ (Article 119, Copyright Law), therefore, according to Article 25 of the Copyright Law, it cannot exceed the copyright’s duration.
56 See Article 78 ter, Copyright Law.
57 See Articles 80 to 85 bis, Copyright Law.
58 See Articles 72 to 75, Copyright Law.
59 The AGCOM Regulation was introduced with Deliberation No. 680/13/CONS, and entered into force on 1 April 2014. The Regulation allows AGCOM to order, following a short administrative procedure, that internet service providers selectively remove or block access to websites hosting allegedly copyright infringing materials, and AVMS and on-demand providers remove illegal content from their catalogues and refrain from retransmitting illegal works in their future schedules.
60 Article 10 of the Italian Civil Code and Articles 96 and 97 of Law No. 633 of 1941.
61 For example, defamation and illicit treatment of personal data.
62 In particular, the Copyright Law allows the unauthorised exhibition, reproduction or sale of an individual’s image only if such use is justified by his or her notoriety and by a general interest (e.g., for purposes of information to the public (right to freedom of the press)).
63 Decision of the Italian Competition Authority No. 27432 of 29 November 2018.
64 Decision of the Italian Competition Authority No. 27784 of 20 May 2019.
65 Judgment 7708/3019, RTI v. Yahoo! Inc, 19 March 2019.
66 Judgment 693/2019, RTI v. Vimeo, 10 January 2019.
67 Judgment 3512/2019, RTI v. Facebook, 15 February 2019.
68 In this respect, the Court of Cassation underlined that the liability of a hosting provider is based on two specific elements, namely the unlawfulness of the content hosted, which, in turn, derives from the infringement of others’ rights by means of a civil or criminal offence; for example, a copyright infringement; and the knowledge of this unlawfulness, meaning that the hosting provider’s liability can exist only if the latter culpably omits to take down the unlawful information or disable access to its service, thus failing to stop the infringement of third parties’ rights.
69 Regional capitals, as defined according to Legislative Decree 28/2004, now abrogated by the new Cinema Law No. 220/2016.
70 Judgment of the Court of Rome No. 1580 of 9 January 2018.
71 Ministerial Decree No. 531 of 29 November 2018.
72 The first case is that of films released in less than 80 theatres and having gained less than 50,000 viewers within the first 21 days: in this case, the Decree allows a shortening of the time lag to 60 days. The second hypothesis is short-time released films (three days or less in theatres, excluding the weekend): in this case, the window’s length is reduced to only 10 days. These reductions are intended to allow smaller (Italian) productions to circulate more quickly and easily on other platforms while possibly reducing the opportunity for piracy.
73 AGCOM, Annex A, Regulation on the classification of audiovisual works intended for the web and video games referred to in Article 10, Paragraphs 1 and 2 of Legislative Decree No. 203 of 7 December 2017, on ‘Reform of the legislative provisions on the protection of minors in the film and audiovisual sector, pursuant to Article 33 of Law No. 220 of 14 November 2016’.
74 The categorisation of audiovisual works primarily delivered via the internet is based on two factors, namely the definition of different age groups and the adoption of thematic descriptions. The thematic descriptions for categorising audiovisual works include the following: discrimination and incitement to hatred, drugs, dangerous and easily imitable conduct, language, nudity, sex, threats and violence. Furthermore, video games are subject to categorisation depending on different age groups and, similar to audiovisual works, are categorised on the basis of a variety of thematic descriptions, including profanity, discrimination and incitement to hatred, drugs, fear, gambling, sex, violence and in-game purchases.
75 Court of Appeal of Rome, Section I, No. 1065 of 19 February 2018, Previti Cesare v. Wikimedia Foundation Inc.
76 The Court of Appeals found that hosting providers can be deemed liable for defamatory statements present on their services providing that they are served with a take-down order issued by the competent authority under the E-Commerce Decree; or receive an ex-parte notice sufficiently detailed and highlighting the presence on their services of defamatory statements severe enough to deem the provider ‘on notice’ even without a proper take-down order.
77 According to Recital 61 of the Directive, the transposition shall be made with the aim of ‘promoting the development of the market for the granting of licences between rights holders and providers of online content sharing services’ to allow rights holders to ‘receive adequate remuneration for the use of their works or other materials’.
78 In September 2017, Italy launched an AI task force through the Agency for Digital Italy. The task force includes 30 direct members and around 450 community members from many sectors. One initiative of the task force is the Observatory on Artificial Intelligence, which aims to analyse AI-related public conversations on social networks through technology.