The Media and Entertainment Law Review: Italy

Overview

The Italian entertainment market has definitely been among the worst affected by the covid-19 pandemic. Live events, such as music shows, theatre performances and sports competitions, were severely hindered by the decision to lock down the country in the first phase of the pandemic and then were given little chance of recovery in the short post-summer reopening. The second wave of the pandemic required the country to impose new social distancing constraints.

Conversely, the extra time spent indoors led consumers to find entertainment online, with the media sector proving to be one of the areas that benefited the most from the constraints imposed by the pandemic. Streaming and subscription video on demand (SVOD) services operators increased their revenues and gained new subscribers. Television, social media and online entertainment platforms and radio acquired a new audience, leading to an increase in revenues. Media companies had to accommodate a high demand for digital content, especially content accessible on the dominant mobile platforms. The pandemic also accelerated digital transformation in the media sector. The 'streaming war' in the film industry between traditional production companies and new participants over the provision of the best SVOD and streaming services was already under way; however, the pandemic helped companies gain new subscribers and also caused an increase in demand as service subscribers pushed for new premium content. This situation initially favoured well-established production companies, which could rely on their archives. However, despite the temporary cessation of film shooting in Italy caused by the lockdown, there has been a massive increase in own-brand productions by new market participants on the strength of the huge budgets accrued, particularly during 2020.

To cope with the negative effects of the pandemic, several actions have been taken to support operators in the entertainment sector.

Since the onset of the crisis in March 2020, the Ministry of Cultural Heritage and Activities and Tourism has worked to ensure liquidity for companies and workers in difficulty, as well as making important interventions to update regulations to adapt to the new context. One measure extended eligibility for aid under Law 220/2016 to those audiovisual works that were not distributed in cinemas between the date when the measures to contain the epidemic began, 23 February 2020, and 15 July 2020 because of the covid-19 emergency, and from 26 October 2020 until cinemas reopened to the public.2

The Support Decree,3 allocated an additional €200 million for cinema and entertainment. An enlarged group of workers in the performing arts has been granted an extraordinary allowance of €2,400. The crisis has highlighted all the weaknesses of an extremely precarious welfare system and the deficiencies in the contracts used by workers in the performing arts. The package of measures launched by the Ministry of Culture and the Ministry of Labour and Social Policies on 20 May 2021 to ensure adequate welfare and social security protection for film and entertainment workers bodes well, as they seek to correct the many distortions that have emerged in recent years and that have become unsustainable, especially after the pandemic. These measures are aimed at strengthening the protection of entertainment workers in a range of areas, from maternity benefits to sickness benefits, from insurance against accidents and occupational diseases to the pension system and the introduction of a new insurance benefit for involuntary unemployment. The new welfare system will be implemented upon approval of a bill to reform the industry by drafting an Entertainment Code, which will reorganise the whole sector while introducing new additional support and a register of actors and professionals in the performing arts.

The 2021 Budget Law increased the resources ordinarily provided by the Cinema Act4 from €400 million to €640 million in total per year.5 This will make it possible to maintain, on a structural basis, the 40 per cent tax credit for film production, a measure that has significantly increased the attractiveness of Italy to the audiovisual industry since 2016.

On 10 June 2021, the Council of Ministers definitively approved the Entertainment Code reform, planning the application of legislative decrees to redesign the functioning of public support for opera, theatre, music, dance, circus and all the performing arts. Subject to parliamentary examination, the bill will complete the work begun by the Support bis Decree6 to provide a new welfare system for the entertainment world.

Legal and regulatory framework

The general legislation on radio and television services is contained in the Consolidated Legislation on Audiovisual and Radio Media Services (the AVMS Code),7 as amended by Legislative Decree No. 44/2010. The AVMS Code constitutes the national legal framework implementing the EU Audiovisual Media Services Directive,8 which was subsequently superseded by Directive 2010/13/EU (the AVMS Directive), and in turn this was implemented in Italy by Legislative Decree No. 204 of 7 December 2017, amending provisions concerning the promotion of European works.

In view of the importance of sustaining competition and pluralism in the media sector and given the scale of the resources available throughout Italy's integrated communications system (SIC), legislation prohibits participants from achieving and maintaining a dominant position. The SIC is defined in Article 43 of the AVMS Code as the economic sector constituted by the convergence of traditional broadcasting, newspapers and magazines, publishing (including through the internet), radio and audiovisual media services, 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.9 Companies achieving revenues in excess of 40 per cent in the electronic communications sector that also operate in the television sector at national level are prohibited from achieving revenues in excess of 10 per cent of the value of the entire SIC.

Decree-Law No. 125 of 7 October 2020 (Decree-Law No. 125) was introduced following a ruling by the Court of Justice of the European Union stating that Article 43, Paragraph 11 of the AVMS Code contravened the EU principle of freedom of establishment.10

According to the provisions of the new Decree-Law, the evaluation of potential risk to media pluralism is therefore no longer linked to revenue thresholds (formerly 40 per cent of the electronic communications market and 10 per cent of one of the SIC markets) but is based on the analysis of criteria such as revenues, barriers to entry, level of competition (plus other criteria defined by the Italian communications regulatory authority, AGCOM, in each particular case). From these criteria, and by assessing whether shareholdings confer 'significant influence' pursuant to Article 2359 of the Civil Code, it is possible to determine whether the position of a company in both sectors has potential or actual harmful consequences for, or distorting effects on, media pluralism.

In cases where there is deemed to be a risk to media pluralism, AGCOM shall apply one of the actions set out in Article 5 of the AVMS Code, to inhibit harmful conduct or operations or impose measures affecting the structure of the company.

The new legislation provides for a transitional regime pending a more general revision of sectoral regulations.

The public service broadcasting framework in Italy comprises a number of legal provisions,11 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 of Economic Development, and the broadcaster, namely Radiotelevisione Italiana (RAI).12 The agreement provides a general framework, while further provisions on duties and rights of the concessionaire are provided by the AVMS Code and the public service contract, signed every three years by the Ministry and the public service broadcaster, on the basis of guidelines determined by AGCOM.13 The contract of service is very specific and detailed, and is defined every three years in relation to the development of the market, technological progress and the changing needs on a cultural, national and local level.

On 15 October 2020, Andrea Orlando, a member of the Chamber of Deputies and former Minister of Justice, introduced a new bill14 to Parliament to amend the parts of the AVMS Code that regulate public service broadcasting (namely RAI).15

The proposed measures are specifically intended to reform the governance of the public service broadcaster. The most important aspect of the reform is the introduction of an ad hoc foundation: the Ministry of Economy and Finance shall transfer the shares it owns in RAI to the newly established foundation.

The board of directors of the foundation shall be competent to determine its general aims and the means to pursue them. According to Article 2 of the bill, the foundation shall be in charge of a variety of tasks, including but not limited to: managing the foundation in accordance with the applicable principles governing public service broadcasting; drafting and implementing the public service contract; appointing the members of the RAI board of directors; approving RAI by-laws and any modification thereof; and enforcing any liability action regarding the members of the RAI board of directors.

Notably, Directive (EU) 2018/1808, known as 'AVMS 2', in amending the AVMS Directive aims to update the previous legislation to take account of developments in the audiovisual media services market, characterised by the convergence of television and internet services, and including user-generated video and platform providers for user-generated video and video-sharing.

The delegated law implementing the new Directive provides for an overall reorganisation of the national legislation. Paragraph 1, Article 3 of the law states as a first principle of the delegation that the government is required to reorganise the provisions of the current AVMS Code through the issuance of new consolidated legislation on digital media services, in light of the ongoing technological evolution in this area. In addition, the law will introduce measures to adapt the requirements for commercial communications to apply also to video-sharing platform services, as well as codes of conduct to protect minors from advertising for food and beverage products with alcoholic or high salt, sugar or fat content.

Finally, one of the guiding criteria of the European delegated law is the promotion by media service and video-sharing platform providers of the development of digital literacy at all levels of society.

For print media, the reference regulatory framework is the same as that for online‐only news outlets. The most significant pieces of legislation are Law No. 416/1981 (the first and foundational law), later modified and complemented by Laws Nos. 67/1987, 250/1990 and 62/2001. This set of laws, together with other legal acts, also supports the press by providing for systems of funding (direct or indirect) and was subsequently improved by Law No. 198 of 26 October 2016. Law No. 198 defined online newspapers and provided clearly specified requirements for them for the first time. Moreover, Legislative Decree No. 70 of 15 May 2017 redefined the rules on direct funding for newspaper and periodical publishers.16

Another important reference is the AVMS Code, which provides for the online advertising revenues that are the main source of income for online publishers. AGCOM analyses advertising revenues on an annual basis as part of its activities for the protection of media pluralism.17

Freedom of expression and freedom of the press are protected by Article 21 of the Constitution of 1948, which states: '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 the 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 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, although these reproduce the key rules contained in the Copyright Law.19 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. In particular:

  1. the Berne Convention;20
  2. the Rome Convention;21
  3. the Geneva Convention for the Protection of Producers of Phonograms;
  4. the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite;22
  5. the Agreement on Trade-Related Aspects of Intellectual Property Rights;23
  6. the World Intellectual Property Organization (WIPO) Copyright Treaty; and
  7. the WIPO Performances and Phonograms Treaty.

With respect to digital and online content, the E-Commerce Act implements the EU E-Commerce Directive in Italy.24 Articles 14 to 17 of the Act govern, among other things, 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.25

The main regulators entrusted with the media and entertainment sectors in Italy are:

  1. 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 a convergent model, as adopted by the Italian legislator and shared by other sector authorities, such as the Office of Communications in the United Kingdom and the Federal Communications Commission in the United States;
  2. the Ministry for Cultural Heritage and Activities and Tourism 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 administers 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
  3. the Italian Data Protection Authority, an independent authority dealing with the protection of personal data of individuals.

Free speech and media freedom

i Protected forms of expression

The constitutional right26 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 an individual to have access to any form of mass media 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 the freedom to inform, the freedom to seek information and right to be informed.

The interpretation of Article 21 gives rise to the following principles:

  1. the right includes the expression of opinions in any form and through any media without limitation, unless constitutional values are jeopardised;
  2. there is a negative side to 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 cases where they become necessary to guarantee public order; and
  3. the active side of the right or freedom to inform is the principle that guarantees the dissemination of information and opinions, and it includes:
    • the right to report;27
    • the right of criticism;28
    • the right to satire;29 and
    • the right of access to administrative documents.

The limits to the freedom of expression are those expressly declared or referable to the Constitutional Charter, and are:

  1. 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 final paragraph of Article 21 of the Constitution;30
  2. the right to confidentiality, to be applied indiscriminately to all media, as well as social networks and private forums;31
  3. state, official, investigation, professional and industrial secrets, among others; and
  4. honour, to be understood as both dignity (violation of which gives rise to insult) and reputation (violation of which gives rise to defamation).32

Hate speech is an issue of growing concern in Italy and it 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 in 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 inconsistent. Italian courts often consider 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.33 In addition to protections available under criminal law, victims of hate speech can either initiate criminal trial proceedings to claim compensatory 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 has been established by a recent law protecting minors against cyberbullying.34

The applicable media legislation prohibits all content that contains an 'incitement to hatred in any way motivated by' differences of race, sex, religion or nationality or that 'instigates intolerant behaviours based on' these differences.35

On 29 April 2021, AGCOM issued a decision36 regarding the company La7 SpA to enforce compliance with the principles of the AVMS Code and AGCOM's mandate to protect the impartiality of information and to correct misrepresentations of legal proceedings and the image of women. The case at issue, the Genovese case, concerned the way in which popular programme Non è l'arena reported on an alleged sexual assault involving a high-profile fintech entrepreneur.

AGCOM held that, in the context of reporting current events, the programme's treatment of the matter was not proportionate and did not constitute a legitimate exercise of the right to freedom of the press. Furthermore, AGCOM noted that the confidentiality, dignity, honour and personal reputations of those concerned had not been accorded the appropriate level of respect, with the broadcaster tending towards sensationalist presentation at the expense of balanced reporting. The authority noted that any legitimate right to report the issue and any social relevance it had was outweighed by the repeated exposure given to the case and the programme's emphasis on personal drama, which ultimately contributed to the distress of the women concerned.

ii Newsgathering

The rights of journalists to gather information to inform the public on matters of general interest should be balanced with other rights protected by the Constitution.

The Consolidated Legislation on the Duties of Journalists is aimed at harmonising 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).37

The processing of data by journalists is free. Journalists 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:

  1. the data has been collected in a lawful and correct manner (principle of lawfulness); and
  2. the dissemination of data shall be limited to the information that is essential to the facts of public interest (principle of essentiality).

Journalists must avoid any artifice and undue pressure when collecting information and ambiguities in the drafting of an article.38

In assessing the legitimacy of the publication of news, it is also important how the news was sought. At the point of collecting information, a journalist must advise interlocutors or interested parties of his or her identity, profession (a 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.

Article 615 bis of the Italian Criminal Code39 prohibits 'illicit interference in private life', to deal with new types of assault made possible by new technologies, and protecting 'home confidentiality'. The aim is to safeguard domestic privacy, which would be disturbed in the event of disclosure of events that take place in the home environment.

In particular, Article 615 bis of the Criminal Code contemplates two distinct cases, corresponding to two different types of breach of home privacy: indiscretion and disclosure.40

However, further incriminating cases that may concern a journalist are found in Articles 617,41 617 bis and 618 of the Criminal Code, which punish 'anyone who, except in the cases permitted by law, instals apparatus, instruments, parts of apparatus or instruments to intercept or prevent communications or telegraphic or telephone conversations between other persons'.42

iii Freedom of access to government information

On 18 June 2021, the Lazio Administrative Court43 ruled on a request lodged by an Italian lawyer regarding RAI and access to documents related to a journalistic investigation carried out by Report, a popular television show on Rai 3.

The applicant claimed that the investigation cast his professional activities in a negative light, depicting him as being behind the unclear management of public funding by certain local public bodies and some of their advisers. Therefore, he sought from RAI access to the documents on which the investigation was based, to collect evidence for defamation proceedings.

The Lazio Administrative Court correctly decided that the 2016 decree on transparency, which regulates the right of access to information, and Law No. 241/1990 regulating access to public documents44 should be applicable to all public institutions, including public broadcasters, serious concerns have been expressed that this right has been extended beyond administrative documents to include journalistic material held by the public broadcaster.

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 Legislation on the Duties of Journalists. A violation of professional duty entails the disciplinary liability of the journalist.45 Moreover, the Data Protection Code acknowledges that journalists' right not to disclose their sources prevails over the right of persons to know the origin of personal data related to them.

According to the Code of Criminal Procedure, like other professionals, journalists are protected by professional secrecy. This secrecy extends to the names of persons from whom they receive trustworthy information, with the distinction that the judge may order a journalist to indicate the source of the information in his or her possession where the information is essential for an investigation and where it is necessary to ascertain the identity of the source.46

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 regulates the use of wiretapping by 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 uphold their professional secrecy in the face of requests from public authorities to produce acts, documents, computer programs, data and information.47

v Private action against publication

Anyone who considers himself or herself to have been defamed by a newspaper article or by a piece of news published on the web (whether on information sites, blogs, social networks or others) can choose between 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 a claim for damages in a criminal trial or he or she can act directly against the offender, suing him or her before a civil judge to obtain compensatory damages.

Each option has its pros and cons; for example, filing a complaint and bringing an alleged offender before a criminal judge may constitute a serious concern for the defendant, and could lead to a settlement more easily, at least initially. The path of criminal prosecution is the most economical remedy for a complainant because there is no cost to be paid to the state to initiate proceedings. The criminal choice is also more straightforward in that the burden of proof is substantially limited to the complainant presenting his or her version of the facts in the complaint, on the merits of which the public prosecutor makes a decision, while the defendant must prove his or her case either in the absence of the alleged offence or in that what is being communicated, although defamatory, is justifiable (including, normally, the right to report or the right to criticise).

However, electing for a 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 there to be no offence in the concrete case and, therefore, no reason to formulate a request for filing (i.e., submit the case to the scrutiny of a 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 lower compensation being recognised by the judge.48 However, there is a possibility that, at the end of the trial, the judge limits himself or herself to pronouncing a criminal judgment against the offender without quantifying the damages 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 judgment is not enforceable and therefore remains suspended pending further appeal.49

Neither option is preferable to the other therefore, nor free from risks and side effects.

In principle, the two types of proceedings are autonomous and separate, unless an injured party first institutes criminal proceedings and subsequently, and without withdrawing from the first action, initiates an independent civil case, in which case the civil proceedings necessarily remain suspended pending the determination of the criminal proceedings.50

Italy is the only EU country to have sentenced journalists to imprisonment for defamation. In several defamation cases, the European Court of Human Rights found Italy in violation of Article 10 of the European Convention on Human Rights.51

The Constitutional Court recently examined the issues raised by the Courts of Salerno and Bari on the constitutional legitimacy of the prison sentence provided for press defamation in view of, inter alia, the inherent conflict between Article 21 of the Constitution and Article 10 of the European Convention on Human Rights. These issues have returned to the Court despite its Order No. 132 of 2020 urging the legislature to undertake a comprehensive reform of the matter.

The Court, noting Parliament's failure to act in this matter, declared Article 13 of the Press Law52 to be unconstitutional, because in cases of conviction for defamation by the press through the attribution of a specific fact it mandatorily triggers a sentence of imprisonment of one to six years, together with the imposition of a fine. In contrast, in cases of ordinary defamation committed by means of the press or another form of publicity, Article 595(3) of the Criminal Code, which provides for imprisonment of six months to three years or alternatively imposition of a fine, has been deemed compatible with the Constitution because under this provision a judge is only allowed to impose a prison sentence in cases of 'exceptional gravity'.53

In the case of the publication of unauthorised material, following the entry into force of the GDPR,54 the interested party has the right to oppose this treatment, and also the right:

  1. to oblige the controller to delete the interested party's data, and allowing the interested party also to obtain the removal of his or her data from historical archives and web pages; and
  2. to have data concerning him or her updated, especially when, following the conclusion of a trial or preliminary investigation, a person accused or investigated is acquitted of the charges, thus 'cleaning up' his or her name or clearing any unpleasant association with matters held on the judicial records.

In Order No. 13524 of 2021, the Court of Cassation ruled on the balance between the right to be forgotten and freedom of information. In the ruling, the Court specified that the right to have one's personal data deleted from news or other news content is lost when maintaining the data permanently is essential for reasons of public interest. In the case at issue, a debtor asked for the removal of information relating to the temporary non-payment of a loan and was refused because the maintenance of this information, with specific references to the debtor, was considered a functional observance of the provisions of the law, in particular Article 2818 of the Civil Code, concerning the certainty of trade and economic activities.

Although the Court's reasoning is particularly notable for the world of media and information, first it must be said that personal data is different from news (and the Court itself did not pronounce on this). Although one can conceive of a legitimate right to delete a specific piece of data, it is in no way acceptable for news to be deleted in this manner. This is recognised in the GDPR itself, which includes the right to information and freedom of expression among the exceptions to the exercise of the right to erasure. In this case, therefore, the Court correctly limited the right to obtain the erasure of data, pointing out that, in fact, this right does not prevail over a rule of law or a fundamental right.

vi Government action against publication

Parliament is considering establishing an ad hoc parliamentary committee of inquiry on the problem of disinformation and, more precisely, the dissemination on a massive scale of fake news.55

The bill under discussion does not establish any binding measures to counter the dissemination of fake news, rather its purpose is to set the committee of inquiry a number of tasks, including:

  1. to investigate the massive dissemination of illegal, false, unverified or intentionally misleading information and content, through both traditional and online media;
  2. to ascertain whether activities of this kind are supported by individuals, groups or organisations receiving financial support, including from foreign entities, with the specific aim of manipulating information and influencing public opinion, and including in the context of electoral or referendum campaigns;
  3. to assess the impact of disinformation on health and in specifically in the context of the covid-19 pandemic;
  4. to verify the 'status quo' from a legal point of view, as well as the existence and adequacy of procedures implemented by media platforms and social media service providers for the removal of false information and illegal content; and
  5. to determine whether legal or administrative measures are necessary to counter and prevent disinformation and the commission of crimes through the media, taking into account the negative consequences of disinformation on the development of minors and their learning abilities.

Intellectual property

i Copyright and related rights

The Copyright Law provides that protection should concern all intellectual creative works belonging to literature, music, figurative arts, architecture, theatre and cinematography, no matter the means and type of expression.56

Under Italian law, authors of copyrighted works are granted moral and economic rights.

Moral rights are enjoyed by an author of a 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, Italian law gives the author the choice to withdraw his or her work from the market whenever serious moral reasons arise.

In general, a person who claims to be the author of a work is regarded as the author unless it is proven otherwise.

Under Article 3 of the Copyright Law, daily newspapers and periodicals enjoy protection as collective works,57 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, specifically with 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.58

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:

  1. the rights of the producer of cinematographic or audiovisual work;59
  2. the rights of performers;60
  3. the rights of those who practise a radio or television broadcasting activity; and
  4. the rights of the music producer.61

On 19 May 2020, the government adopted the Relaunch Decree62 setting out urgent measures with immediate effect to support health, work and the economy, as well as social policies related to the epidemiological emergency.63

The Decree addresses some issues that had arisen a long time before the health emergency arose, but that have proven to be central during lockdown and upon the enactment of social distancing measures, having triggered a significant increase in the consumption of digital services.

New legal instruments have been introduced to address the significant (and increasing) number of copyright infringements committed by digital and electronic means, as well as their negative impact on the creative, entertainment and culture industries. In particular, according to Article 195 bis Paragraph 1, AGCOM may now order internet service providers that even indirectly use national numbering resources to arrange for their services (such as instant messaging platforms) to stop any infringement of copyright and related rights. An information society service is defined as 'any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services'.

Article 195 bis Paragraph 2 provides that if an infringer does not comply with orders issued by AGCOM in the exercise of its functions of the protection of copyright, AGCOM shall impose an administrative fine ranging from €10,000 to 2 per cent of the annual turnover of the infringer.

On 22 July 2021, AGCOM adopted a resolution making significant amendments to the regulation of online copyright enforcement originally approved in Resolution No. 680/13/CONS.64 AGCOM's jurisdiction was extended by the 'Relaunch Decree' to include cases of unlawful dissemination of content on the internet by means of instant messaging services that use, even indirectly, users' telephone numbers. The same Decree also restored the option for AGCOM to impose sanctions for non-compliance with orders to remove illegally distributed content.

On 5 August 2021, the Council of Ministers adopted the preliminary draft of the legislative decree transposing the EU Directive on Copyright in the Digital Single Market,65 The text, which will be examined by Parliament, represents the final result of collaboration between the various administrations and trade associations involved.

The measure introduces rules for publishers, both individually and in association, regarding recognition of a related right for the use of their publications of a journalistic nature by media monitoring companies and providers of information society services and press reviews; this will give publishers the option of negotiating agreements with these bodies to receive fair remuneration for the use of content produced by the publishers.

As regards copyright infringements, the draft measure specifies that 'the new rules stipulate that online platforms (including social networks), when granting public access to works protected by copyright uploaded by their users', are obliged to obtain authorisation 'from the right holders (online encyclopedias, educational and scientific directories, online marketplace providers, cloud services, among others, are excluded)'.

As regards copyright protection for online journalistic publications, there is a 'right for authors of journalistic content to receive a share of the revenues allocated to publishers'.

This right, however, 'is not recognised in the case of private or non-commercial use of journalistic publications by individual users, nor in the case of hyperlinks or the use of single words or very short extracts'.

AGCOM will determine a fair level of compensation and will also be responsible for monitoring compliance with the agreement and applying administrative fines of up to 1 per cent of turnover in the event of failure to notify data.

In addition, the way in which Italy will transpose the two most important provisions of the Directive, namely Articles 15 and 17,66 is subject to certain considerations. Article 15 introduces into the Italian legal system a real obligation for information society service providers to contract, which is absent from the text of the Directive and could be considered as running counter to the aims of the EU provision. In fact, the intention of the Directive is only to grant 'to the publishers of press publications under this Directive . . . the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC'.

Furthermore, the validity of Article 17 is currently the subject of a request raised by Poland for judgment by the European Court of Justice, alleging violation of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. The alleged violation stems from the requirement for providers of online content sharing services to put in place preventive control mechanisms to avoid incurring liability.67

ii Personality rights

Under Italian statute law, a person's name and image are considered part of an individual's 'personal sphere', disallowing any unauthorised use. These publicity and image rights benefit from strong protections, granted by both the Civil Code and the Copyright Law.68 In addition, unauthorised use is likely to result in a criminal offence.69

Hence, the rule of law is that a person's image may be used only with the interested individual's consent.

Use without consent may occur (as an exception) only if set by law and on condition that the use does not prove prejudicial to the dignity or reputation of the person represented.70 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 that individual's consent, which is usually achieved through contractual agreement (and for consideration).

The economic aspects of personality rights are quite frequently raised before the courts, especially in cases of unauthorised use for advertising or, in a broader sense, commercial purposes. They courts may determine such use as prejudice and having damaging effects by depriving the right holder of remuneration that he or she could have obtained in return for consent. In addition, a significant number of lawsuits originate from the actions of an intrusive press delving deep into and invading the privacy of a celebrity's personal sphere.

The Court of Cassation recently closed a court case pending since 2010 concerning compensation for financial loss resulting from the publication of images relating to the private life of well-known international personality and American actor George Clooney.71

On 19 July 2010, Clooney sued Arnoldo Mondadori SpA and Alfonso Signorini, the editor-in-chief of the magazine Chi, in the Court of Milan claiming violation of his right to privacy following publication of intimate photos of him with his girlfriend in an outdoor park.

In the appeal proceedings, the Court of Appeal of Milan expressly excluded pecuniary damage to the plaintiff while considering the violation of the rights to privacy, to respect for private and family life,72 and to protection of the home,73 as well as illegal interference in private life.74

In fact, in the judgment reasoning, the Court of Appeal of Milan excluded pecuniary damage because the plaintiff, through his spokesman, had denied consent to the publication of images of his private life. Each image of the plaintiff was therefore to be considered 'off the market', and therefore disclosure would not harm the right holder's ability to profit from sales.

The Supreme Court, however, ruled that:

from the express wish to prohibit the publication of photos relating to one's private life, referring to a well-known person – as in this case, as an interpreter of dozens of films, . . . certainly is – it does not follow that one abandons the right to image, which can be exercised either through the power, prolonged for the time deemed necessary, not to publish certain photographs . . . or through the choice not to economically exploit one's personal data.

For these reasons, the Supreme Court held that publication and dissemination of photographs contrary to the right holder's prohibition may give rise to pecuniary damage, to be determined on an equitable basis.

iii Unfair business practices

In resolution No. 28563 of 9 February 2021, on a matter of consumer law, the Italian Competition Authority (AGCM) intervened against Sky Italia Srl for unfair commercial practices during the emergency period between March and April 2020. AGCM imposed fines totalling €2 million on Sky Italia for unfair commercial practices.

The case relates to the behaviour of the pay TV broadcaster during the covid-19 health emergency and the consequent suspension of live broadcasting of sports competitions.

One of the deemed unfair practices was Sky Italia's failure to refund automatically the monthly fees for the Sky Calcio and Sky Sport packages, from the time live sporting events were suspended until their resumption.

A second 'misleading commercial practice' concerned the 'coronavirus discount', supposedly providing a price reduction on Sky Calcio and Sky Sport packages from the moment of subscription. However, Sky Italia 'omitted or provided inadequate and untimely information' on its existence and on how and when to request it. Finally, AGCM identified a third 'aggressive commercial practice' concerning the imposition of 'onerous and disproportionate obstacles' to the use of the coronavirus discount by customer, allowing entry to the scheme exclusively through the online channel, without providing an alternative.

Competition and consumer rights

AGCOM recently dismissed four sets of proceedings concerning pluralism by companies operating in the media and electronic communications sectors.75

The proceedings were initiated to assess whether the presence of the same company in two areas could have a distorting effect on media pluralism, given the convergence of the electronic communications and media sectors, and pursuant to Article 4 bis, Paragraph 1 of Decree-Law No. 125.

In the first decision, AGCOM established that Sky Italia's position did not affect media pluralism because the company was a new operator in the electronic communications market, with negligible market share. With regard to the media sector, AGCOM confirmed the existence of an important substitution effect, with online platforms acquiring the content most attractive to viewers, as demonstrated by the recent bidding for Serie A football rights, and despite Sky being an important television broadcaster with significant market share in the pay TV sector.76

In Resolution 234/21/CONS on Fininvest–Mediaset (the Fininvest group), AGCOM dismissed the proceedings because, in the context of the electronic communications sector, the group operates exclusively in the national market for terrestrial radio and television broadcasting services, which, according to the investigation, are pluralistic and not concentrated markets. As regards the media sector, AGCOM recognises the increasingly strong competitive pressure on traditional broadcasters from the new online platforms.

Following proceedings against Telecom Italia, AGCOM noted in its Resolution No. 235/21/CONS that in the context of the media market the company offered third-party paid audiovisual media services and had only a small market share, despite being a leader in several electronic communications markets, in particular in broadband and ultra-broadband connectivity, and Voice over Internet Protocol, as well as being one of the main mobile operators.

Finally, in Resolution No. 209/21/CONS, AGCOM concluded the proceedings on Vivendi's position in relation to its shareholding in Mediaset and Telecom Italia (TIM). The investigation established that Vivendi's presence in both TIM and Mediaset was sufficient to affect media pluralism because of a number of factors, including TIM's leading position in fixed and mobile networks, Mediaset's significant share in the SIC and the potential to offer bundled media and telecommunications services, which could become mutually strategic, with consequent exploitation of the leverage effect on each company's market power. Nonetheless, AGCOM found that these factors contributed only to a potential risk in that Vivendi could wield 'significant influence' in the management of TIM, but this was not the case with Mediaset. Moreover, the parties had signed agreements to deliver a progressive and significant reduction of Vivendi's stake in Mediaset and immediate commitments to exclude an active role for Vivendi in Mediaset's management. For these reasons, AGCOM also dismissed these proceedings, stipulating that the implementation of the agreements and the commitments undertaken by the parties were to be monitored to ensure full compliance with the rules on the protection of media pluralism.

Digital content

An important distinction, from a liability perspective, is the difference between an 'active host' and a 'passive host'. Only the latter falls within the rules excluding liability provided under EU Directive 31/2000 and Legislative Decree 70/2003.77

According to the most recent case law, confirmed by the Supreme Court,78 internet service providers (ISPs) are acting as active hosts when performing an activity that involves certain 'indexes of participation' on the part of the ISP in relation to the content uploaded. According to the Supement Court's list, these indexes include the following activities, among others: filtering, categorising, evaluating, monetising, and advertising or promoting content (in a nutshell, any activity that improves the user experience and in turn the user's trust in and loyalty towards the content provider).

The Supreme Court has further provided that ISPs acting as passive hosts (thus eligible for the above-noted liability exemptions) will still be held liable if they were made aware of the illicit content by any means (even a generic notice letter) but did not act to remove the content nor communicate the illicit nature of the content to the competent authorities.

In summary, an IP right holder wishing to prove the liability of an ISP acting as a passive host would need to prove that the ISP was made aware of the illicit content, that the illicit nature of the content was firmly established, and that the ISP had an opportunity to curtail the illicit activity.

The reasonings in two recent rulings of the Court of Milan drew on the difference between active and passive providers to convict, among others, the web giants Amazon, Instagram and Facebook on different grounds.

The Court decision of 17 June 2020 was issued in relation to the request for removal of hypothetically unlawful content on the social platforms Facebook and Instagram by a person who considered comments posted about him on the two platforms to be damaging to his reputation.

To assess which legislation was applicable to the case at hand, the Court of Milan examined whether Facebook and Instagram carried out data processing activities or simply carried out activities for the delivery of multimedia content (i.e., simply hosting the content). Since no data processing activities were found, the two defendants were able to take advantage of the – much more generous – protection rules provided for ISPs under the aegis of the EU Directive instead of the application of the normal liability regime for unlawful acts.

In its order of 19 October 2020, however, the Court of Milan convicted the company Amazon, finding it to be an active host and consequently subject to Article 2043 of the Civil Code.

This decision expressly cited the indexes of participation referred to in a previous Court of Cassation judgment, highlighting how, in this case, Amazon without the consent of the owner managed logistics and even carried out advertising activity through its website for products for which the plaintiff (correctly) believed it had exclusive rights.

Therefore, in this case, by differentiating between active and passive host ISPs, as referred to in Recital 42 of the e-Commerce Directive, the Court was able to 'justify' the non-application of that Directive, and its consequent application of the ordinary regime and conviction of Amazon as an active host ISP.

The Council of State in its recent judgment79 clarified that liability of the hosting provider is excluded in the event of manipulation of stored data. This viewpoint emphasises the variety of elements capable of delimiting the characteristics of active hosting, including activities of filtering, selection, indexing, organisation, cataloguing, aggregation, evaluation, use, modification, extraction and promotion of content published by users, operated through an entrepreneurial management of the service, as well as the adoption of a technique of behavioural evaluation of users to increase their loyalty.

Contractual disputes

The main legal issues and areas of litigation in the cinema and television production market typically relate to the ownership of intellectual property rights in underlying works, the unauthorised use of works or unlawful exploitation of the economic rights over a work, and the contractual relationships between producers, distributors and exhibitors over communication of programmes 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 artists, and publishers paying correct royalties to authors.

The Court of Cassation has intervened in the controversial issue of the criteria used for assessing damage in relation to copyright, providing useful clarification in a recent order80 about the operation of the criterion for the retroversion of profits under Article 158 of the Copyright Law.81 This Article provides that, in the event of infringement of the copyright of an original work, the injured party may claim compensation for damage and loss of profits, in proportion to the profits made unlawfully. The judge has the right to settle the amount of damages on a lump-sum basis, starting from the amount that would have been due for the exploitation of the rights had the infringer sought authorisation for their use from the owner.

Year in review

Italy has officially abolished film censorship by scrapping legislation that since 1913 has allowed the government to censor scenes and ban movies such as, most famously, Pier Paolo Pasolini's Salò or the 120 Days of Sodom and Bernardo Bertolucci's Last Tango in Paris. Under the new decree, film distributors will self-classify their own movies on the basis of existing audience age brackets, such as over 14 (or aged 12+ if accompanied by a parent) and over 18 (or aged 16+ accompanied by adults). Subsequently, a new commission of film industry figures, as well as education experts and animal rights activists, will review films' classifications. The move – which is symbolically important, although censorship is de facto no longer practised – definitively does away with the system of controls and interventions that had continued to allow the Italian state to limit the freedom of artists. Hundreds of films from all round the world have been banned locally over the past decades for religious, 'moral' and political reasons.

On 9 February 2021, the Italian advertising self-regulatory body, IAP, passed a new Food and Beverage Regulation on commercial communications concerning food and beverage products.82 The Regulation aims to strengthen protections for children and ensure healthy eating. Furthermore, it constitutes an attempt to implement some of the provisions of the revised AVMS Directive, which has yet to be transposed in Italy, and largely resorts to self-regulatory and co-regulatory mechanisms; for example, by suggesting the adoption of codes of conduct to reduce the exposure of children to audiovisual commercial communications for food and beverages containing nutrients and substances with a nutritional or physiological effect. In particular, these include fat, trans-fatty acids, salt or sodium, and sugar, excessive intake of which is not recommended. Among other things, Article 5 of the Regulation specifies that audiovisual commercial communications targeting children 'must not emphasise the positive nutritional qualities' of these types of food and beverages.

Outlook

A deeper and more comprehensive review of the national regulatory framework and an acceleration of legislative reforms at European level have become increasingly urgent, to define the responsibilities of online platforms as participants in the information system, and to ensure greater regulatory accountability of these actors. At the same time, it is of course necessary to continue with the implementation of an effective system of supervision of competitive structures with a view to protecting media pluralism.83

Two regulations proposed by the European Commission on 15 December 2020, the Digital Services Act and the Digital Markets Act, will definitely have an impact on the future regulation of online audiovisual content in Italy.

Footnotes

1 Valentina Mayer is the founding partner at Mayer Lex.

2 This measure was suspended on 1 May 2021 by the new Ministry of Culture 'windows decree' (Ministerial Decree No. 172 of 30 April 2021) obliging films in receipt of state subsidies to be released first in cinemas, with distribution via streaming platforms or television restrained for 30 days following theatrical release, with effect until 31 December 2021(https://www.beniculturali.it/comunicato/cinema-franceschini- firma-nuovo-decreto-finestre-torna-lobbligo-uscita-in-sala-prima-dello-streaming). This is a temporary measure pending a more formal structural agreement between the various actors involved.

3 Decree-Law No. 41 of 22 March 2021.

4 Law No. 220/2016.

5 Law No. 178/2020, art. 1, para. 583, letter (a).

6 Decree-Law No. 73/2021, converted into Law No. 106 of 23 July 2021.

7 Legislative Decree No. 177/2005 as amended in 2010, 2012, 2015 and 2017.

8 Directive 2007/65/EC, subsequently superseded by Directive 2010/13/EU; see above.

9 On 27 January 2020, the Italian communications regulatory authority, AGCOM, issued decision No. 25/20/CONS concerning the closure of the procedure for the assessment of the SIC's economic dimensions for 2018. Pursuant to Article 43 of the AVMS Code, AGCOM must periodically conduct an assessment to estimate the extent of SIC revenues.

10 Case C-719/18 Vivendi SA v. Autorità per le Garanzie nelle Comunicazioni.

11 The bulk of the provisions are contained in the AVMS Code, at Articles 45 to 49 quater, which were amended in December 2015 by the Stability Law, the yearly budget law. Other binding provisions can be found in Law No. 249/97, establishing AGCOM and its areas of competence, 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 communications and election campaigns.

12 RAI is the Italian state-owned public service broadcaster controlled by the Italian Ministry of Economy and Finance.

13 On 14 February 2020, in Resolution No. 69/20/CONS, AGCOM came to a decision regarding a proceeding initiated against RAI for its alleged failure to fulfil its general radio and television public service obligations, and the National Service Contract 2018–2022. In particular, AGCOM identified a grave breach of the obligations and tasks specified in Article 48, Paragraph 2 of the AVMS Code, as the public service broadcaster's programming violated the 'principles of balance, pluralism, completeness, objectivity, impartiality, independence and openness to the various political and social positions'.

14 Bill No. 2723.

15 Chamber of Deputies, bill on the initiative of Deputy Orlando – amendments to the Consolidated Legislation on Audiovisual and Radio Media Services, pursuant to Legislative Decree No. 177 of 31 July 2005 concerning the regulation and organisation of public radio, television and multimedia services.

16 Now partially modified by the 2019 Budget Law (Law No. 145/2018, Article 1, Paragraph 90), providing for the abolition, or gradual reduction until abolition, of direct contributions made to certain categories of radio companies and newspaper and periodical publishers, subject to an organic review of sector regulation.

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 legislature 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 Copyright Law No. 1941/633.

20 Ratified by Law No. 1978/399.

21 Ratified by Law No. 1963/866.

22 Ratified by Law No. 1977/771.

23 Ratified by Law No. 1994/747.

24 Legislative Decree No. 70 of 9 April 2003 transposed Directive No. 2000/31/EC into Italian legislation.

25 EU Copyright Directive (2001/29/EC). 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.

26 Article 21 of the Constitution.

27 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).

28 With regard to the boundaries between defamation and the right to criticism, see the recent judgment of the Criminal Court of Cassation, Section V, No. 15089, 29 November 2019.

29 With regard to the definition of right to satire and its limits, see the recent judgment of the Criminal Court of Cassation, Sez, V,. No. 32862, 7 May 2019.

30 Paragraph 6, 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).

31 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.

32 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 for a period 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 for a period from one to six years. For defamation to be liable under the Press Law, it must involve an accusation of a fact.

33 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.

34 Law No. 71 of 29 May 2017, 'Provision to protect minors and to prevent and combat cyberbullying acts'.

35 See Article 32, Paragraph 5 of the AVMS Code. Special provisions on the protection of minors are established in the Code on Television 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 concern the special provisions for the protection of minors.

36 AGCOM Decision No. 147/21/CONS.

37 Article 4 of the Consolidated Legislation on the Duties of Journalists states that journalists 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 Legislation on the Duties of Journalists, to which the Legislative Decree 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 the General Data Protection Regulation (Directive 95/46/EC). The rules of the codes of conduct constitute applicable secondary rules (soft law) in the legal system, on the basis of which judges also decide on the legitimacy of the processing of personal data carried out for journalistic purposes or a manifestation of thought.

38 See Court of Cassation judgment No. 18006 of 9 July 2018.

39 Articles 614 and 615 respectively regulate violation of domicile and violation of domicile committed by a public official.

40 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 a 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 a 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 obtained by means prohibited by Article 615 bis of the Italian Criminal Code: otherwise, he or she may also be indicted.

41 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'.

42 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.

43 TAR Lazio, section III.

44 Legislative Decree No. 97 on FOIA and Transparency of 25 May 2016 and Law No. 241/1990 respectively.

45 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.'

46 Paragraph 3, Article 200, Code of Criminal Procedure.

47 Article 256, Code of Criminal Procedure.

48 On this specific aspect, see the judgment of the Court of Cassation, Section III, No. 28084 of 26 June 2018.

49 In contrast, acting in a civil court allows greater control over the course of a trial and its timing: (1) apart from unforeseeable events and subject to the organisational efficiency of the various judicial offices, the duration of the trial can be predicted; (2) there is no risk that the public prosecutor will not adopt the plaintiff's allegations; and (3) it is certain that a judge will rule on the case submitted for examination. However, in the event of an unsuccessful outcome, it is true that the economic risk is much greater because both the costs of the proceedings (the 'unified contribution', due at the time of registering a case and the value of which depends on the amount of compensation requested) and the defence costs incurred by the accused (i.e., the legal costs of the other party) are normally borne by those who bring, and lose, a case.

50 Civil Court of Cassation, Section VI, No. 28499 of 30 October 2017.

51 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.

52 No. 47 of 1948.

53 Constitutional Court, judgment No. 150 of 12 July 2021.

54 And the consequent amendments made to Legislative Decree 196/03 by Legislative Decree 101/18.

55 The Constitutional Affairs Committee of the Senate is currently discussing a bill (No. 1900) aimed at establishing a parliamentary committee of inquiry.

56 Article 1, Copyright Law. '[A] work that is the product of a “creative act”, even a minimal 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.

57 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'.

58 Article 25, Copyright Law. 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 a 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.

59 See Article 78 ter, Copyright Law.

60 See Articles 80 to 85 bis, Copyright Law.

61 See Articles 72 to 75, Copyright Law.

62 Law Decree No. 34.

63 The Decree was then converted into Law No. 77 of 17 July 2020.

64 AGCOM Resolution No. 233/21/CONS.

65 Directive 2019/790.

66 'Protection of publications of a journalistic nature in the event of online use' and 'Use of protected content by providers of online content sharing services' respectively.

67 Paragraphs 4(a) and 4(b), Article 17 of the Copyright Directive are the subject of an action for annulment by Poland (C-401/19). The Court of Justice of the European Union has yet to rule on the matter. In the interim, an opinion of an Advocate General, published in July 2021, denied that there is a violation of the right to freedom of expression and information but recognised a limitation of the right.

68 Article 10 of the Italian Civil Code and Articles 96 and 97 of Law No. 633 of 1941.

69 For example, defamation and illicit treatment of personal data.

70 In particular, the Copyright Law allows the unauthorised exhibition, reproduction or sale of an individual's image only if use of this kind is justified by the individual's notoriety and by a general interest (e.g., for purposes of information to the public (the right to freedom of the press)).

71 Order of the Court of Cassation No. 17217/2021 of 21 June 2021.

72 Article 8, ECHR.

73 Article 14 of the Italian Constitution and Article 615 of the Criminal Code.

74 Article 615, Criminal Code.

75 Resolutions Nos. 209/21/CONS and 210/21/CONS published on 28 June 2021 and Nos. 234/21/CONS and 235/21/CONS published on 30 July 2021.

76 Resolution No. 210/21/CONS.

77 In Italy, the rules concerning the liability of internet service providers (ISPs) are contained in Decree 70/2003 (which implemented Directive 2000/31/EC of the European Parliament, on the subject of e-commerce), and these provide for different degrees of responsibility for the different activities that can, in practice, be carried out by ISPs.

78 Decision No. 7708/19.

79 Council of State Judgment No. 3851/2021.

80 Court of Cassation Order No. 21833 of 29 July 2021.

81 Law No. 633/1941.

83 See AGCOM, Annual Report to Parliament 2021, page 84.

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