The Media and Entertainment Law Review: Italy
Italy is one of the hardest-hit countries in the covid-19 pandemic. The virus outbreak caused, and is still causing, widespread concern and economic hardship for consumers, businesses and communities across the country.
Pursuant to decrees signed by Prime Minister Giuseppe Conte, first imposed on Northern Italy and later extended to the whole country, virtually the entire economy was shut down for more than two months: citizens were prevented from leaving their homes, except for 'well grounded work-related reasons or situations of need or movements for health reasons'. At the same time, school and university activities as well as public events and sport competitions were suspended nationwide. Italy's easing of lockdown restrictions was cautious, and restrictive measures are still in place and will not be lifted in the near future.
Italian film and TV productions, and operators in the music and theatre sectors, immediately complied with the lockdown and post-lockdown rules that the government imposed on every 'non-essential' business.
The crisis has raised a number of unique challenges in the media and entertainment sectors.
The social distancing rules are driving cancellations of live events nationwide at stadiums, arenas, theatres, resorts, theme parks and other venues, resulting in lost revenue from ticket sales, merchandising, advertising and promotions. The cancellations affect not just major performers and teams, but also stadium and theatre workers, businesses that involve close human proximity and the community at large in terms of economic impact.
The suspension of film and television production has caused delays in release dates.
The social distancing guidelines have also triggered office closings, requiring more employees to work remotely. This has led to an increase in cybersecurity risks.
At the same time, social distancing has generated a boost in digital media in terms of video and music streaming and downloads, as well as in terms of online publications.
While the media industry may be among the hardest-hit by the covid-19 crisis, it is also the industry that humanity is relying upon for crucial up-to-the-minute information, and as a way to counter the isolation that is caused by social distancing.
Ultimately, consumers want to stay informed and be entertained, and the media industry, which encompasses the ecosystem of business-to-business and business-to-customer companies, has continued to find new, engaging ways to help deliver on the promise of keeping customers informed and entertained.
To support the cultural sector during the emergency, the government has adopted a series of financial measures. In particular, the Cure Italy Decree implemented an emergency fund for entertainment, cinema and audiovisual services. The fund has been enhanced by the Relaunch Decree and ultimately increased by a further €90 million by the August Decree, bringing the total endowment to €335 million.
Amid the global pandemic crisis, the importance of ensuring trusted information is getting more crucial as fake coronavirus news poses a direct threat to the life and health of people worldwide. With a virus unknown even to experts, people's anxiousness to know how governments are going to deal with it, unprecedented political decisions in a completely new phase of life and information, as well as use of information for propaganda purposes (in particular for and against China and Russia) have created the ideal conditions for the spread of an enormous amount of fake news and conspiracy theories on the coronavirus that have also affected Italy in recent months.
Both national and European institutions are studying and implementing initiatives to combat disinformation at the time of covid-19.
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, and which amended the provisions concerning the promotion of European works.
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.
The public service broadcasting framework in Italy is represented by several legal provisions, 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). 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. 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 28 December 2015, the Italian parliament passed Law No. 220 of 2015, reforming the statutory framework for the official broadcasting agency of the 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 Law No. 67/1987, Law No. 250/1990 and Law No. 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 by 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 has redefined the regulation on direct funding for newspaper and periodical publishers.
Another important reference is the AVMS Code, which provides for the online advertising revenues that 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.
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 the law and necessary in a democratic society. This right includes the freedom to hold opinions, and to receive and impart information and ideas.
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, which, however, reproduce the key rules contained in the Copyright Law. 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:
- the Berne Convention;
- the Rome Convention;
- the Geneva Convention for the Protection of Producers of Phonograms;
- the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite;
- the Agreement on Trade-Related Aspects of Intellectual Property Rights;
- the World Intellectual Property Organization (WIPO) Copyright Treaty; and
- 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. 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.
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 a 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 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
- 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 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 an 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 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:
- 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 cases where they become necessary to guarantee public order; and
- 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;
- the right of criticism;
- the right to satire; 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:
- 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;
- the right to confidentiality, to be applied indiscriminately to all media, as well as social networks and private forums;
- 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).
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 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. In addition to protections available under criminal law, victims of hate speech can either initiate proceedings within a 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 has been established by a recent law protecting minors against cyberbullying.
The applicable media legislation prohibits all content that contains an 'incitement to hatred in any way motivated by' or that 'instigates intolerant behaviours based on' differences of race, sex, religion or nationality.
On 15 May 2019, AGCOM adopted a regulation regarding respect for human dignity and the principle of non-discrimination and the countering of hate speech that contains provisions aimed at countering the use of hate speech in audiovisual media services and establishes the principles with which audiovisual and radio media service providers must comply in terms of respect for human dignity and the principle of non-discrimination.
On 27 February 2020, the Council of the Italian Authority for Communications found a violation of the Regulation by a national television programme, Fuori del coro, broadcast by the TV channel Rete 4 of the Mediaset group.
Following the monitoring of some episodes of the aforementioned programme broadcast during September and October 2019, the Authority found that, through the use of graphic elements and the ways in which presenters referred to immigration issues, the broadcaster had spread inaccurate, condensed, misleading and biased information.
On 9 September 2019, Facebook closed the extreme right-wing movement CasaPound Italia's account, with some 240,000 followers, as well as the accounts of some of its members and supporters, due to an alleged infringement of Facebook's policy prohibiting incitement to hatred and violence. The next day, CasaPound Italia asked Facebook to reactivate its account, but received no reply. CasaPound Italia thus lodged an application for interim relief with the Rome Commercial Court under Section 700 of the Italian Code of Civil Procedure. The Rome Commercial Court found that the deactivation of CasaPound Italia's Facebook account was not compatible with the principle of political pluralism, in that it precluded a political actor that had been 'lawfully active on the Italian political scene since 2009' from participating in the Italian political debate, and Casa Pound's Facebook account was therefore reactivated.
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 text of the duties of the journalist 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).
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:
- 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.
Journalists must avoid any artifice and undue pressure when collecting information and ambiguities in the drafting of an article.
In assessing the legitimacy of the publication of 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 (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.
The Italian Criminal Code, under 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.
It is, however, worth mentioning further incriminating cases that may concern a journalist, such as Articles 617, 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'.
iii Freedom of access to government information
Article 103 of the Cure Italy Decree (and subsequent amendments) provides for a general suspension of all administrative proceedings from 23 February 2020 to 15 May 2020.
This provision has affected the right of access to documents, in its various forms: documentary access (pursuant to Articles 22 et seq. of Law No. 241/1990), and generalised civic and simple civic access (pursuant to Legislative Decree No. 33/2013 and subsequent amendments). The suspension provided for by Article 103 of the Decree has a generalised scope. On this point, the Civil Service Department, through various press releases, has specified that the suspension must also refer to access proceedings, including generalised civic access, given its general scope. Therefore, for all requests for access to documents (documentary or civic access) submitted or already pending between 23 February 2020 and 15 May 2020, the administration has the right to make use of the suspension for the period indicated by the deadline for the conclusion of relevant proceedings, with the consequence that the administration will be obliged to conclude proceedings within 30 days only from 15 May 2020, and not from the actual date of submission of a request.
The suspension of time limits in administrative procedures related to requests for access made during an emergency situation caused by the coronavirus has inevitably led to the limitation of the fundamental right to information and transparency at a time in which there has been the greatest need for clarity regarding the action of public authorities.
Article 103 does not, in fact, contain any indication regarding requests concerning data on health emergencies or, in any case, health information, but has only recognised the possibility of highlighting particular urgent needs in a request, and the need for the administration to guarantee a rapid conclusion to procedures considered (at its discretion) more urgent.
These limitations might be seen as violating international law's obligations on access to information and public health.
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. A violation of the professional duty entails disciplinary liability of the journalist. Moreover, the Data Protection Code acknowledges journalists' right not to disclose their sources as a prevalent right in respect of the right of persons to know the origin of personal data related to them.
According to Paragraph 3 of Article 200 of the Code of Criminal Procedure, 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 a journalist to indicate the source of the information in his or her possession where such information is essential for an 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 uphold their professional secrecy against requests of public authorities to produce acts, documents, computer programs, data and information.
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 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 an 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 a complainant because there is no cost to be paid to the state to initiate 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 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. However, there is a possibility that, at the end of the trial, the judge limits him 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.
No option, therefore, is preferable to the other; nor is it 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 an injured party first constitutes a civil party in criminal proceedings and, subsequently and without revoking this constitution, initiates an independent case: only in this case will civil proceedings necessarily remain suspended pending the definition of criminal proceedings.
Italy remains the only EU country to sentence journalists to imprisonment for defamation. 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.
On 9 June 2020, the Italian Constitutional Court held a public hearing into the constitutional legitimacy of Article 595 of the criminal code and Article 13 of the law on the press. The Court referred a decision on whether to abolish prison sentences for criminal defamation in relation to journalists and media workers to the Italian parliament, ruling that while reform was 'urgently necessary in light of the ECHR's case law', it was the responsibility of Parliament to amend the legislation. Since several bills on the subject are currently pending in Parliament, the Court, with due respect for loyal institutional cooperation, decided to postpone the discussion of the issues until a public hearing on 22 June 2021 in order to allow Parliament to intervene with a new regulation on the matter.
In the case of the publication of unauthorised material, the interested party has the right, following the entry into force of the GDPR, 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.
On 2 December 2019, the Data Protection Authority adopted the Guidelines 5/2019 on the criteria for the exercise of the right to be forgotten regarding search engines. Their objective is to provide a correct interpretation of the right to be forgotten (Article 17 of the GDPR) in the case of a request for de-indexing (delisting) by the interested parties who make the request to search engines, in the light of the outcome of the CJEU ruling in the well-known C-131/12 case, and they were adopted following numerous complaints received by the supervisory authorities in relation to the refusal of search engine suppliers to comply with requests of cancellation received.
vi Government action against publication
In the context of the coronavirus pandemic, the government has faced criticism from the opposition during a controversial case regarding scientific reports classified as secret. Luigi Einaudi Foundation applied for access to some minutes of the Technical Scientific Committee (CTS) to shed light on decisions taken by the government to deal with the coronavirus emergency. The non-profit organisation had requested access to the documents of the scientists involved in April 2020, with particular interest centred on those dated 28 February, 1 March, 7 March, 30 March and 9 April 2020; that is, those drawn up in the midst of the pandemic and cited several times by Prime Ministerial decrees, and on which the Premier relied for the regulation of the lockdown in the country.
The Lazio Regional Administrative Court (TAR) upheld the appeal lodged against the refusal of access to the documents by the government, which, according to this decision, should have made everything public within 30 days. he government, through the Attorney General's Office, appealed to the Council of State against the decision of the TAR. The administrative judges suspended the effect of the TAR ruling as a precautionary measure. The lawyer, in the appeal against the TAR ruling, spoke of 'concrete damage to public order and the security that knowledge of the Committee minutes, in the present phase of the emergency, would entail both in relation to the technical assessments and the general guidelines of the technical body'.
Copasir (the Parliamentary Security Committee) also took to the field in this delicate affair, which the government decided to put an end to by declassifying the documents. Therefore, on 6 August 2020, the content of five of the minutes of the CTS were published on Luigi Einaudi Foundation's website. Subsequently, at the beginning of September 2020, all other scientific minutes of CTS were published on the website of the national Civil Protection Department.
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 way and type of expression (Article 1, Copyright Law).
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.
Generally speaking, a person who claims to be the author of a work is such unless it is proven otherwise.
Under Article 3 of the Copyright Law, daily newspapers and periodicals enjoy protection as collective works, 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).
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;
- the rights of performers;
- the rights of those who practice a radio or television broadcasting activity; and
- the rights of the music producer.
On 19 May 2020, the government adopted the Relaunch Decree setting out urgent measures with immediate effect to support health, work and the economy, as well as social policies related to the epidemiological emergency.
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 ٢ 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 €١٠,٠٠٠ to ٢ per cent of the annual turnover of the infringer.
On 6 April 2020, the Italian Federation of Newspaper Publishers (FIEG) requested that AGCOM order the removal of all digital editions of newspapers published on a few channels of the instant messaging platform Telegram, as well as the suspension of access to the entire platform. The application was made under the regulation for the online enforcement of copyright (adopted by Resolution No. 680/13/CONS, as subsequently amended). Telegram offers an instant messaging service that is accessible from the web and that allows for the creation of private chats as well as public channels where users' access is free and content can be shared. In association with this service, Telegram offers a hosting service that allows for such public content-sharing activities by users.
In a decision adopted on 23 April by Resolution No. 164/20/CONS (text published on 27 April 2020), AGCOM clarified that it was aware of the dissemination of illicit content on Telegram channels and of the serious damage this causes to the entire newspaper industry. AGCOM held, however, that a possible indiscriminate blocking of access to all Telegram channels appeared disproportionate. For this reason, FIEG's application was ultimately dismissed. AGCOM clarified that under the applicable legislative and regulatory framework, it currently lacked the power to order selective removals of content against operators that are based abroad. When a violation occurs outside national borders, as in the Telegram case, AGCOM can only order the Italian access providers that allow access to the website to disable access to the whole website. Therefore, AGCOM urged for amendments to the current legislation that would extend AGCOM's powers and specifically to changes to Article 4(1)(a) of the E-Commerce Decree, with the aim of considering operators who offer information society services in Italy using national numbering plans as being established in Italy. Such an amendment would allow AGCOM to directly order operators like Telegram to selectively remove user-generated content.
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. In addition, unauthorised use may easily result in a criminal offence.
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. 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 delving deep into a celebrity's privacy sphere.
In a recent ruling, the Court of Milan condemned Dolce & Gabbana designers for abusive use of the name and image of Diego Armando Maradona.
The Court of Milan upheld the claim of the former Argentinean footballer and sentenced Dolce & Gabbana to pay compensation to the latter. During an event held in Naples in 2016, the designers paraded a model wearing a blue T-shirt (similar to that of Naples) bearing the number ten and Maradona's name.
This happened without the stylists having asked the consent of the well-known former footballer, who sued them and won in the first instance; in the judgment, it is indeed stated: 'It does not correspond to market rules to take advantage of the parasitical exploitation of other people's notoriety'. It is also stated that the use of Maradona's name 'conveys particular suggestions of historical charm and football excellence', and 'third party entrepreneurs may not be allowed to make use of it without the consent of the right holder'. The ruling also states that 'the use of the name of Maradona was explicitly aimed at appropriating, in the D&G collection, precisely those attractive components inherent in the reference to the mythical footballer's prestigious sporting history'.
The Italian Data Protection Authority intervened, with a press release of 25 August 2020, regarding some episodes of the exposure of minors in the media (in particular, the case of Chanel Totti, daughter of football player Francesco Totti, which had sparked numerous controversies), recalling that 'the right of the child to privacy must always be considered as primary with respect to the right of criticism and reporting'.
The Authority reminded the media that the legislation on the protection of personal information in the journalistic field provides specific guarantees to protect minors: among these, with the aim of protecting their personality, the adoption of specific precautions is required to avoid the exposure of minors to the dissemination of information about them, including their image, which could have potentially negative consequences on their peaceful development within their own life context. In particular, the Authority recalled that 'even if, for reasons of significant public interest and subject to the limits set by law, the journalist decides to disseminate news or images concerning minors, he or she shall be responsible for assessing whether the publication is really in the objective interest of the minor, in accordance with the principles and limits established by the Treviso Charter' (as provided for in Article 7, Paragraph 3, Rules of Ethics relating to the processing of personal data in the exercise of journalistic activity.
iii Unfair business practices
With decision No. 8433 of 30 April 2020, the Italian Court of Cassation has confirmed that a project or work of interior design con be considered as a work of architecture if a series of characteristics are met, such as a unitary design, a clearly defined and visually perceptible pattern, a clear stylistic key and the personal imprint of the author.
The decision puts an end to the dispute between two well-known companies active in the production of cosmetics, namely Kiko and Wycon: Kiko had taken legal action against its competitor, complaining that Wycon had unduly taken over the aspects of its concept stores designed by an architecture firm on its commission, thus violating its copyright on the project. Moreover, Kiko claimed rights under the law of unfair competition because of the identical takeover of other elements, such as the vendor's clothing and accessories, the website's format, the commercial promotion and the products developed. The Court found that the defendant's conduct both infringed Kiko's copyrights pursuant to Article 2 No. 5 of the Civil Code and amounted to unfair parasitic competition sanctioned by Article 2598 No. 3 of the Civil Code.
Competition and consumer rights
In a recent judgment, the European Court of Justice (ECJ) concluded that the provision of Italian law preventing Vivendi from acquiring 28 per cent of the capital in Mediaset is contrary to EU law. By a decision of 2017, AGCOM declared that Vivendi, by acquiring the shares in Mediaset, had infringed that provision of Italian law that, with the aim of safeguarding pluralism of information, prohibits companies whose revenue in the electronic communications sector, including that secured through controlled or affiliated companies, is greater than 40 per cent of the total revenues generated in that sector, from earning, within the SIC, revenue exceeding 10 per cent of the total revenues generated in that system in Italy.
The Court concluded that the Italian provision sets thresholds that constitute a prohibited impediment to the right of establishment, as it is not appropriate for achieving the objective of protecting pluralism of information since those thresholds do not make it possible to determine whether and to what extent an undertaking is actually in a position to influence the content of the media.
On 26 September 2019, the Regional Administrative Court of Lazio (TAR Lazio) rejected the appeal submitted by SIAE, the Italian copyright collecting society, against a 2018 decision in which the AGCM imposed on the said undertaking a symbolic fine of €1,000 for abusing its dominant position in the market for the provision of copyright management services in violation of Article 102 of the Treaty on the Functioning of the European Union.
According to the AGCM, SIAE engaged in anticompetitive conduct – targeting authors and users of copyrighted works, as well as foreign collective societies – resulting in a complex abusive strategy aimed at excluding other undertakings engaged in the management of copyright from entering the market; and preventing the entry and development of new and more innovative market players. In its view, SIAE abused its dominant position with the aim of strengthening its market position and extending it outside the scope of the statutory monopoly it enjoyed in light of Article 180 of the Copyright Law. This strategy was implemented by means of, inter alia, exclusivity clauses in management contracts and the bundling of different copyright management services. In addition, the AGCM found that SIAE engaged in exclusionary conducts when granting licences to TV broadcasters and concert organisers.
The Relaunch Decree introduces Article 263-bis, which amends Section 27 of Italian Legislative Decree No. 206/2005 establishing the Italian Consumers' Code by adding new Paragraph 3-bis to Section ٢٧ of the Consumers' Code.
In detail, Article 263-bis Paragraph 1 empowers the AGCM to order – again, as a precautionary measure – that suppliers of connectivity services to internet networks, operators of other telematic or telecommunication networks, and operators that provide telematic or telecommunication services within telematic or telecommunication networks to remove any initiatives or activities addressed to Italian consumers through telematic and telecommunication networks that may constitute an unfair commercial practice. In the event of unjustified non-compliance with such order, the AGCM may apply an administrative fine of up to €5 million.
With judgment No. 18727/2019, the Rome Commercial Court condemned the Vid.me platform, controlled by the US company Bit Kitchen Inc, for the unlawful publication of audiovisual content extracted from the famous television programmes of RTI- Reti Televisive Italiane spa.
The judgment, in line with the consolidated orientation of the Rome Commercial Court on the matter and in full compliance with the principles established by the very recent judgment of the Court of Cassation, concerns the issue of the limits of liability of internet service providers in the current regulatory system, as outlined in Legislative Decree No. 9 April 70/2003, implementing Directive 31/2000/EC, which is the subject of interpretation by EU and national jurisprudence. In particular, the Court examined the issue relating to the presence or absence in the provision of hosting services of interference indexes on content illegally published through a content sharing platform, indexes whose presence did qualify Vid.me as an active platform:
such indexes are constituted by the performance of activities of filtering, selection, indexing, organisation, cataloguing, aggregation, evaluation, use, modification, extraction or promotion of the contents, carried out through an entrepreneurial management of the service, as well as the adoption of a technique of behavioural evaluation of the users in order to increase their loyalty: behaviours that have, in substance, the effect of completing and enriching in a non passive way the fruition of the contents by indeterminate users.
By Resolution No. 169/20/CONS adopted on 5 May 2020, AGCOM reached a landmark in the enforcement of copyright on digital works. In the context of the provision of press reviews, a website run by L'Eco della Stampa, in a special section accessible to users upon logging in, hosted reproductions of editorial works, including articles posted by Il Sole 24 Ore. The service provider, L'Eco della Stampa, claimed that the news and information included therein did not constitute an infringement as they were available under a copyright exception. AGCOM noted that, even if there is no regulation governing press reviews, newspaper articles do fall within the literary works protected under the Italian Copyright Law; accordingly, publishers have an exclusive right of economic exploitation over the same in the forms of reproduction and communication to the public. According to Article 65 of the Copyright Law, in fact, articles of economic, political and religious content published by newspapers and magazines or disseminated to the public can be freely reproduced in other newspapers or magazines only if the rightsholder has not expressly reserved the use or reproduction of the same. Reproduction and communication to the public are allowed provided that they indicate the source, date of publication and name of the author, where available. Accordingly, in the view of AGCOM, and also in accordance with Italian case law, the press reviews made available by L'Eco della Stampa were thus found to violate both Article 13 and Article 16 of the Copyright Law governing, respectively, the exclusive rights of reproduction and communication to the public. At the end of proceedings AGCOM ordered the website operated by L'Eco della Stampa to take down the infringing content available therein, pursuant to the regulation on copyright enforcement, Resolution No. 680/13/CONS.
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 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.
As a result of the spread of the covid-19 virus, the Italian legislator has adopted several measures to contain the epidemic, suspending the majority of activities not considered to be essential.
Such provisions have had an impact on the execution of pending agreements, leading to the termination of agreements for the supervening impossibility of their performance. In this scenario, the Italian legislator has recently adopted specific provisions to mitigate the impact of the coronavirus measures on pending agreements.
In detail, under Italian law, the cancellation of events could lead to a termination of the agreements due to the supervening impossibility to execute them for the lockdown, established by the law. In such case, parties may rely on Articles 1256 and 1463 of the Civil Code, related to the termination for supervening impossibility to perform the agreement.
For instance, tickets purchased for any event suspended pursuant to the measures adopted by the government (e.g., concerts) shall be reimbursed. The application of the remedy under Article 1463 of the Italian Civil Code for the case at stake has been confirmed by Article 88 of Decree-Law No. 18/2020 (adopted in the context of the covid-19 emergency). Furthermore, please note that Article 91 of Decree-Law No. 18/2020 provides that the implementation of the measures adopted by the government to contain the covid-19 emergency is always evaluated to avoid debtor liability, even in connection with terms and penalty clauses related to delays or non-fulfilment. The burden of proof shall lie with the debtor, who shall prove that 'the non-fulfilment or delay was caused by the impossibility of performance resulting from a cause beyond his control' (Article 1218 of the Civil Code).
Year in review
For the purpose of containing the spread of the covid-19 virus, Article 6 of Legislative Decree No. 28/2020 provides for the implementation of a national platform for contact tracing aimed at alerting users who come in contact with virus-positive subjects, who can therefore promptly activate health prevention and treatment protocols (quarantine, medical exams). Following the consultation opened by the Ministry for technological innovation and digitisation, Immuni (a smartphone app created by Bending Spoons Spa) was chosen among other platforms for its suitability for preventing contagion and for guarantees offered in terms of privacy protection. Systematic and large-scale monitoring of locations and contacts between natural persons is a grave intrusion of their privacy, and the processing of personal data carried out by contact tracing apps must assure the adoption of specific safeguards. The adoption of Immuni was widely discussed and criticised in the Italian media, but ultimately was found to be compliant with the European Data Protection Board's Guidelines (No. 3/2020 and No. 4/2020) concerning the processing of personal data in the context of the covid-19 outbreak. On these grounds, the Italian Data Protection Authority authorised the Italian Ministry of Health to commence the processing related to the covid-19 alert system via Immuni.
The Commercial Section of the Civil Court of Milan recently issued an important decree that represents a further step forward in the fight against (increasingly aggressive) digital piracy to protect cinematographic works. The subject of the above-mentioned decree is the film Tolo Tolo, directed by and starring the famous Italian actor and comedian Checco Zalone and released in cinemas on 1 January 2020. Dozens of pirate web portals had already appeared in the weeks preceding the film's distribution in cinemas, which, among other things, misused the title and poster of the work to advertise its imminent release for the benefit of its users. Following the sending of formal warnings to the hosting service providers of the above mentioned portals, the companies Taodue srl and Medusa Film spa – the producer and owner of the distribution rights of the work respectively – on 19 December 2019 lodged an urgent precautionary appeal with the Court of Milan requesting the issue of a decree requiring the major Italian telephone operators to take the most appropriate technical measures to effectively prevent all their customers from accessing the pirate portals in question, both in their current name and in association with any other future domain name (first or second level) suitable to allow access to the same illegal content. The Court upheld the requests of the plaintiffs, and ordered the connectivity service providers to immediately adopt the most appropriate technical measures to effectively inhibit all recipients of their services from access to the domain names identified by the applicants, even if they are associated with a different top level domain – when they transmit the same work that is the subject of the appeal– as well as access to aliases deriving from changes to the second level domain, with the additional condition that the objective subjective link with the parties responsible for the initial illegal activity be maintained. Internet service providers must continue to intervene promptly following reports from the owners of the rights to the work.
On 9 June 2020, the Constitutional Court held an important public hearing on the constitutional legitimacy of Article 595 of the Criminal Code and Article 13 of Law 47/1948 (press law), deciding that a reform of the legislation on defamation is necessary, and that it is up to the parliament to amend the rules (on this matter, see Section III.v).
The Court ruled that if Parliament has not changed the legislation by 22 June 2021, it will itself abolish the prison sentences currently provided for the offence of defamation. Several reform bills on the subject are currently before the Senate. To fully protect press freedom, Italy needs a comprehensive defamation law reform that includes the full repeal of all criminal provisions related to defamation, and at the same time a complete overhaul of civil defamation law to shield journalists from abusive litigation and strategic lawsuits against public participation.
In the past year, the number of Italian citizens that have chosen subscription video on demand services has increased enormously, and it is clear that the growth of video streaming services will continue to expand. The proliferation of subscription-funded services, and the 'streaming war' between competing operators deriving from it, will in the near future cause a transition from subscription-funded services as we know them to more complex and highly customised services in which AI technologies will play an important role in implementing support to consumers.
The debate regarding the transposition of very important EU legislation into national law will continue in the next few months. Following the approval of a law delegating the government as the body responsible for implementing European directives and other EU acts in Italy, the discussion on the law was launched in the Senate in February 2020: Article 3 sets out the specific delegation principles and criteria for the implementation of Directive (EU) 2018/1808 on Audiovisual Media Services through amendments to the Consolidated Text of Audiovisual Media Services, while Article 9 provides for the principles and criteria for the implementation of Directive (EU) 2019/790 on copyright in the Digital Single Market.