The Technology, Media and Telecommunications Review: Italy
In February 2020, the European Commission adopted two documents ('A European Strategy for Data' and 'Shaping Europe's Digital Future') outlining the ambitious goal of putting technology at the service of people while achieving a fair and competitive digital economy and an open, democratic and sustainable society. 2 For Italy, aspiring to these goals translates to an effort to advance the development of networks securing ultra-fast internet connections, along with shaping a regulatory framework where the challenges imposed by media and telecoms convergence, digitalisation, 5G roll-out and licencing and building of ultrafast broadband networks can be successfully met. The modernisation of telecommunications infrastructures is, in fact, a priority objective to support the country's competitiveness within healthy dynamic competition.
The year in review features several regulatory interventions in the TMT sector. However, three main developments can be identified: (1) the disruption caused by the covid-19 outbreak whose effect on the TLC market are just starting to come into view; (2) the progressive evolution around network development towards high-speed broadband connectivity and 5G across the country; and (3) a landmark decision by the Court of Justice of the European Union ruling that an Italian law combating dominant positions in the electronic communications sector is against the freedom of establishment.3
i The regulators
Four main public authorities are entrusted with regulating the IT, media and telecoms sectors in Italy:
- AGCOM, established by Law No. 249/1997, is an independent administrative body empowered to regulate and supervise electronic communications, broadcasting and publishing in Italy. In 2012, Law Decree No. 201/2011 extended AGCOM's powers to postal services. AGCOM's activity follows two main directions: preserving fair competition among market operators by preventing the creation of monopolies; and protecting consumers by ensuring minimum standards of quality, pluralism and the provision of universal services. Although in principle AGCOM is deemed to be fully independent from any economic and political power, its members are appointed directly by the Italian parliament.
- The Ministry of Economic Development, through its Department of Communications. In coordination with AGCOM, the Ministry manages the radio spectrum by approving the national frequency allocation plan and by issuing the related tender procedures. Upon request by operators, it also grants authorisations for the provision of networks and ECSs, as well as for the provision of television and radio contents.
- The Agency for Digital Italy (AGID) assists in areas related to issues of public administration, digital connectivity to public offices and special public users, and integrating connectivity with advanced digital services.
The role of the public sector in the development of the entire ultra-broadband policy in Italy is coordinated by the Presidency of the Council of Ministers through the Committee for the spread of high-speed broadband (COBUL). COBUL comprises the Presidency of the Council of Ministers, the Ministry of Economic Development, Infratel Italia S.p.A. and AGID.
ii Main sources of law
The main sources of law in the TMT sector are:
- Legislative Decree No. 259/2003 (the Code), which implemented the comprehensive regulatory framework for electronic communications networks and services adopted in 2002 at the EU level, including the Framework (Directive 2002/21/EC), Authorisation (Directive 2002/20/EC), Access (Directive 2002/19/EC) and Universal Service Directives (Directive 2002/22/EC). In 2009, Directive 2009/140/EC, Directive 2009/136/EC and Regulation (EC) No. 1211/2009 were adopted to improve and update the 2002 regulatory framework, and the Code was amended accordingly. The Code sets out the rules governing both public and private telecommunications services, including the provision of internet-based services;
- Law No. 249/1997, which established AGCOM and set out its regulatory powers; and
- Legislative Decree No. 177/2005 (the Consolidated Text on Radio and Audiovisual Media Services), which contains the regulatory framework concerning radio and television broadcasting.
On 20 December 2018, Directive (EU) 2018/1972, establishing the European Electronic Communication Code, entered into force. It recasts the existing telecoms directives (the Framework, Authorisation, Access and Universal Service Directives). Member States have until 21 December 2020 to transpose the Directive into national law. Italy has not yet adopted the measures necessary to transpose the Directive.
On 18 December 2018, Directive (EU) 2018/1808 concerning the provision of audiovisual media services (the Audiovisual Media Services Directive) entered into force. Member States have until 19 September 2020 to transpose it. Italy has not yet adopted the measures necessary to transpose the Directive. The main points of the Directive include, in particular, the strengthening of the country of origin principle, the definition of video sharing platforms, the strengthening of child protection measures (such as more stringent prohibitions for certain types of advertising), measures against the dissemination of violent content and content instigating terrorism or racial hatred, and the introduction of a 30 per cent minimum quota for European works for on-demand audiovisual media services and the obligation to give such works prominence.
iii Regulated activities
Pursuant to Article 25 of the Code, any provider of networks or electronic communications services (ECSs) is required to obtain an authorisation from the Ministry of Economic Development to operate in Italy.
Article 1 of the Code defines the notion of ECSs as those services, normally provided for remuneration, which consist wholly or mainly in the transmission of signals on electronic communications networks (ECNs). ECNs, broadly speaking, consist of any transmission system, including any switching or routing equipment or any other resources, including passive network elements that permit the conveyance of signals by wire, radio, optical or other electromagnetic means, in particular, satellite networks; fixed-to-mobile terrestrial networks (whether circuit or packet switched, including the internet); networks for the broadcasting of television or radio programmes; any other system for the transport of electricity in so far as it is used to convey electronic signals; and television cable networks irrespective of the kind of content transported.
The provider can start to operate as soon as it has filed the request for authorisation, without having to wait for any formal consent from the competent authority. However, no later than 60 days from the filing, the Ministry of Economic Development must verify that the conditions and requirements are met and grant the authorisation or, where appropriate, impose a ban on the activity. The authorisation is granted for a maximum 20-year period, is renewable and can be transferred to third parties.
The authorisation grants the provider the right to negotiate interconnection with pre-existing network providers and telecommunication services operators. It also entails the right to use RFs.4
The provision of media services is also subject to an authorisation regime, as set out in the Consolidated Text on Radio and Audiovisual Media Services.
From a telecoms regulatory perspective, there are no requirements for a communications provider to be domiciled in Italy prior to or during the provision of services.
According to Annex 10 to the Code, companies holding a general authorisation for the installation and provision of public communications networks – including those based on the use of radio frequencies – and companies holding a general authorisation for offering telephone services to the public (subject to some exceptions) are required to pay an annual contribution.
If the Ministry ascertains the failure of a company to comply with one or more of the conditions required to gain the general authorisation – or relating to the granting of rights to use radio frequencies and numbers – it may file an injunction to end the infringement and restore the previous situation. If within the period required the company does not remedy the infringement, the Ministry may impose a fine or other strict measures. Pursuant to Articles 98 and 102 of the Code, in the case of installation and provision of electronic communications networks or services in the absence of a general authorisation, the Ministry may impose a fine, to be determined in reasonable relation to the gravity of the offence. Additional charges may be imposed in the case of breach of provisions on spectrum allocation.
iv Ownership and market access restrictions
Italian law generally makes no distinction between Italians and foreign nationals concerning investment and ownership in the telecommunications sector. However, Article 25, Section 1 of the Code provides that restrictions on the general authorisation regime provided by law can be applied by the Ministry of Economic Development to non-EU or non-EEA citizens and enterprises.
Moreover, the Ministry of Economic Development can issue an authorisation to non-EU companies only if Italian entities would have a reciprocal right to enter the market in their country.
Access to the telecommunications sector is also affected by the general rules set out in Law Decree No. 21/2012, as implemented by Presidential Decree No. 85/2014, concerning the regulation of strategic operations in the communications sector, such as the installation of infrastructure and the provision of broadband services.
These rules give the government special powers when facing operations that could constitute a threat to national security and defence, namely, the possibility to:
- impose additional requirements related to supply safety, data security and technology transfers;
- impose a veto on the merger or demerger of a company, on its transfer or the transfer of its registered office abroad, as well as on the dissolution of a company; and
- prohibit the purchase of shares by entities other than the government, Italian public bodies or entities controlled by them in the event that the purchase of shares would result in the purchaser holding a share of capital able to compromise the interests of defence and national security.
v Transfers of control and assignments
In the telecommunications sector, both AGCOM and the IAA enforce merger control rules. Pursuant to Article 1.6(c)(11) of Law No. 249/1997, the IAA must obtain a non-binding opinion from AGCOM on proposed decisions concerning communication operators.
Italian law also provides ownership restrictions to ensure external pluralism and competition in the media sector. Pursuant to Article 43 of the Consolidated Text on Radio and Audiovisual Media Services, AGCOM exercises its control to prevent the creation of dominant positions and ensure that the anti-concentration limits provided by law are respected by companies operating in the integrated communications system (ICS).5 To this end, undertakings operating in the ICS are required to notify a proposed merger to AGCOM, which can veto the merger if it would result in the creation of a dominant position capable of harming pluralism. Any merger concluded without prior clearance by AGCOM is null and void.6
As stated in AGCOM's Procedural Regulation adopted under Article 43 of the Consolidated Text on Radio and Audiovisual Media Services, AGCOM's investigations on dominant positions are articulated in two subsequent stages: market identification and analysis. In February 2020, AGCOM adopted Resolution No. 25/20/CONS concerning the analysis of the economic size of the ICS for 2018. The analysis showed an increase in the value of the ICS to €18.4 billion in 2018, or 1.04 per cent of GDP.
vi Telecommunications laws and regulation affecting consumers
There are specific provisions designed to safeguard consumers' rights in Legislative Decree No. 206/2005 (the Consumer Protection Code), which provides general rules, and in Article 70 of the Code, which provides a list of compulsory information that should be included in contracts concluded with consumers or other final users, in particular:
- any restriction on the provision of emergency services;
- information on any other conditions limiting access to or use of services and applications;
- the minimum levels of quality of the service offered;
- the inclusion of personal data in a directory and the categories of data stored;
- details on prices and tariffs, as well as the way in which up-to-date information on all applicable tariffs, maintenance costs and payment systems may be obtained;
- the duration of the contract, the conditions for renewal and termination of the single services and of the contract (including benefits from promotional terms and the charges due on termination of the contract, such as any cost recovery with respect to the equipment furnished);
- any compensation which applies in case the level of quality of the service provided by the contract is not reached; and
- information on dispute resolution.
Telecommunications & internet access
i Internet and internet protocol regulation
Offering services over the internet is governed by the general provisions set out in the Code and is subject to a general authorisation. In this context, the purpose of the Code is to: promote efficient investments and innovation in telecommunications facilities; increase flexible and efficient management of frequencies spectrum; strengthen security measures in communications; and consolidate users' rights.
Given the variety of internet-based services (e.g., email, mailing lists, social networks and web search engines), all attempts to provide a comprehensive internet regulation have been unsuccessful. Nonetheless, sector-specific regulation exists, for example, with regard to online piracy. The digitisation of communications has exponentially increased the ability to reproduce and distribute works online without the consent of the copyright owner. Pursuant to Article 182 bis and 182 ter of Law No. 633/1941 (the Copyright Law), as amended by Law No. 248/2000, both AGCOM and SIAE, the Italian association of authors and publishers, are competent to prevent and detect online copyright violations.
In exercising its powers, through Resolution No. 680/13/CONS, AGCOM adopted the Regulation on the protection of copyright on ECNs, the first measure ever adopted in Italy to fight online piracy. The Regulation aims to protect online copyright through two complementary actions: support for the development of a legal offer of digital works, and fighting against piracy through effective, proportionate and dissuasive enforcement procedures. The Regulation is only addressed to intermediary service providers and not to end users. The Regulation ensures the provided protection only at the initiative of the copyright owner. If the owner has already filed a claim on the same matter before the judicial authority, AGCOM has to dismiss the matter.
To stop copyright breaches, AGCOM may adopt different measures. If the works that infringe copyright are on a server that is situated in Italy, AGCOM can order the hosting service provider to remove the works or to disable access to them. If the server is located abroad, AGCOM orders the mere conduit service provider to disable access to the copyright-infringing website. Moreover, AGCOM can enable redirection to a web page whose content will be determined by AGCOM itself. All the measures taken by AGCOM may be appealed before the administrative judge.
Legislative Decree No. 3541/2017 entrusted AGCOM with the tasks of monitoring the adoption by collective management organisations of appropriate governance and financial standards in relation to rights holders and users, and the granting of multiterritorial licences for copyright on musical works for online use in order to promote their cross-border dissemination. Through Resolution No. 396/17/CONS AGCOM has adopted the regulation implementing the decree.
Finally, Law No. 167/2017 introduced new provisions in the field of copyright by entrusting AGCOM with the power of adopting precautionary measures for the protection of copyright, as well as measures preventing the reiteration of copyright breaches that have already occurred.
AGCOM implemented Law No. 167/2017 by adopting Resolution No. 490/18/CONS, which significantly amends the Regulation on the protection of copyright on ECNs. In July 2020, AGCOM made additional amendments to the Regulation by adopting Resolution No. 295/20/CONS.
ii Online platforms
From 2013 – as a result of the changes introduced by Law No. 103 of 16 July 2012 in the Consolidated Text on Radio and Audiovisual Media Services – AGCOM has supervised and monitored the competitive environment and pluralism of information. It does so with reference to online advertising brokerage platforms, including search engines and social networks, as well as video sharing and video streaming platforms and online newspapers. These matters (which include large digital portals and global sharing platforms) are economic resources relevant to the identification of the ICS. The resulting surveillance and monitoring activities are carried out through the use of a series of survey tools and periodic data collection relating to revenues, costs and ownership structures. It is also achieved through the annual communication to the Economic Information System (IES)7 and the Register of Communication Operators (RCO).8
AGCOM controls and regulates online platforms to ensure transparency and publicity of ownership structures, and to monitor competitive conditions and the state of information pluralism on the internet. In particular, these platforms are subject to an annual assessment of the economic size of the ICS. This allows AGCOM to apply the rules and anti-concentration measures governed by Article 43 of the Consolidated Text on Radio and Audiovisual Media Services,9 as well as the identification of the relevant markets for the protection of pluralism and the verification of the emergence of any dominant positions or positions prejudicial to pluralism.
In this respect, on 18 July 2019, AGCOM opened proceedings to investigate the possible existence of dominant positions or, in any case, positions capable of harming pluralism of information in the online advertising sector.10 The proceedings represent the first market investigation directly involving online platforms. They are currently ongoing and could lead to the imposition of remedies to regulate possible dominant or harmful positions.
Additionally, when the new European Electronic Communications Code (Directive 2018/1972/EU) is fully implemented at the national level, it will extend to online platforms and impose on operators certain obligations that so far have been imposed only on traditional media and telecommunications service providers. As a consequence, for example, national regulators will be able to impose regulatory measures on certain online platforms to allow for the interoperability of their services.
In addition, with reference to online video sharing and video streaming platforms, new supervisory functions will be introduced into national law when the new Audiovisual Media Services Directive is transposed.
Regarding other types of platforms, including those offering intermediation services in the purchase and sale of goods and services to end consumers, AGCOM and the IAA are exploring new regulatory and legislative intervention paths through the use of innovative instruments of action (soft law, self- and co-regulation, etc.).11
On a different note, the 2019 Budget Law established a digital services tax, which applied from 1 January 2020 and repealed the digital transaction tax established by the previous Budget Law. This new tax applies to entities exceeding certain turnover thresholds. It also applies to revenues deriving from the supply of the following digital services: (1) online advertising; (2) intermediation in the purchase and sale of goods and services; and (3) transmission of data collected from users through a digital interface. At the EU level, in this context, Regulation 2019/1150 of 20 June 2019 promoting fairness and transparency for business users of online mediation services was adopted at EU level. It introduces specific measures to ensure fairness, transparency and appropriate dispute resolution tools for business users when using online brokerage services and online search engines.
iii Universal service
The Universal Service Directive has been implemented in Italy by Articles 53–57 of the Code. These provisions state that all users on the national territory, regardless of their geographical location, shall be entitled to certain ECSs to be provided at a predetermined quality level.
Article 58 of the Code establishes that AGCOM may designate one or more undertakings as having a universal service obligation; AGCOM carries out an objective, transparent and non-discriminatory designation procedure, whereby no undertaking is a priori excluded from being designated; and until the designation, which to date has not been made by AGCOM, TIM is designated by law as having a universal service obligation.
The universal service in the telecommunications field currently includes the following services:
- the provision of access at a fixed location to the public communications network, which allows users to make and receive calls, communicate by fax, send data and have functional access to the internet;
- the supply of telephone directory services;
- the provision of public pay telephones, which also allows for free access to emergency numbers; and
- the supply of special conditions and options of service for disabled users.
In economic terms, the cornerstone of the universal service principle is the accessibility and flexibility of rates (i.e., the obligation to provide service even to unprofitable customers).
Although the concept of universal service has been extended over time to include a reference to functional internet access, it still does not include broadband services. However, through Resolution No. 113/16/CONS, AGCOM launched a preliminary investigation concerning the possibility to qualify the provision of broadband in the terms of the universal service. The results of the public consultation were summarised in June 2017 in Resolution No. 253/17/CONS.
AGCOM concluded that the EU requirements for the inclusion of broadband internet within the universal service obligation are met with reference to the 2Mbps internet connection speed, considering that such connection speed is used at a national level by at least half of all households and at least 80 per cent of all households having a broadband connection.
By Resolution No. 258/18/CONS, AGCOM defined the economic conditions for the supply of universal services to low-income users.
With regard to the quality of universal service, in Resolution No. 467/19/CONS AGCOM defined the quality objectives for 2020, confirming those of 2019, with the sole exception of the repair time allowed to fix malfunction, which has been set at a more challenging 75 hours instead of the 90 hours set for 2019.
iv Restrictions on the provision of service
EU Regulation 2015/2120 laying down measures concerning open internet access (the Open Internet Regulation) has direct effect in Italy. Article 3(3) of the Open Internet Regulation prevents network operators from discriminating against other operators' customers or content. It requires providers of internet access services to treat all traffic equally when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, and the terminal equipment used.
Only reasonable traffic management measures can be implemented by providers of internet access services. In order to be deemed reasonable, such measures must be transparent, non-discriminatory and proportionate. They must not be based on commercial considerations but on objectively different technical quality of service requirements for specific categories of traffic. The measures must not monitor specific content and must not be maintained for longer than necessary. Providers of internet access must not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories of them, except as necessary, and only for as long as necessary. In particular, providers may only do this as necessary to achieve certain specified aims including compliance with the law, network, service and terminal equipment integrity and security, and to prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.
Article 6 of the Open Internet Regulation requires Member States to determine the penalties applicable to infringements of Articles 3 (safeguarding of open internet access), 4 (transparency measures for ensuring open internet access) and 5 (supervision and enforcement).
Although there is no law in Italy that specifically regulates network neutrality, the latter has become a growing concern in AGCOM's agenda. In 2011, AGCOM launched a public consultation entirely focused on net neutrality, the results of which were summarised in Resolution No. 714/11/CONS.12
The respect of the net neutrality guarantees provided by the Open Internet Regulation is monitored by AGCOM. Regulation No. 348/18/CONS establishes the right of end users to use terminal equipment of their choice and to enter into agreements with ISPs that do not limit the exercise of this right (the 'free modem' right). ISPs cannot refuse to connect to the network the terminal equipment chosen by the user, nor can they impose additional charges or unjustified delays on end users.
With Resolution No. 68/18/CONS, AGCOM issued a warning against Vodafone for imposing a fee to access the internet from a mobile network in tethering mode, considering that this entails a restriction to the user's freedom to choose the device from which to access the internet.
Additionally, the monitoring and supervisory activities carried out by AGCOM also concentrated on traffic management measures, as well as on the supply of 'specialised services'.13 With regard to zero-rating offers (i.e., those offers where an ISP applies a zero price to the data traffic associated with a particular application or class of applications (and the data does not count towards any data cap in place on the internet access service)), AGCOM supervisory power focused on inducing providers to alter their contractual conditions, removing elements of potential incompatibility with EU Regulation No. 2015/2120.14
During 2019 and the first half of 2020, AGCOM exercised its powers under EU Regulation No. 2015/2120 and, in particular, pursuant to Articles 3 and 4, closely monitored operators' commercial offers. In addition, AGCOM participated in the work of the Body of European Regulators for Electronic Communications (BEREC) expert groups to adopt an opinion on the implementation of national regulatory authorities' obligations on net neutrality. This activity is also preparatory to the revision of the BEREC Guidelines on Open Internet, which AGCOM will then be called upon to apply directly in the exercise of its functions.
Finally, AGCOM is aware of the possibility that EU network neutrality regulations may hinder the deployment of 5G, given that 5G services will rely on a core feature called 'network slicing', which allows a network operator to provide dedicated virtual networks with functionality tailored to different services or customers over a common network infrastructure.15 However, as seen, under the Open Internet Regulation the principle of net neutrality does not prohibit an ISP from adopting reasonable traffic management measures. AGCOM seems to suggest that network neutrality's influence on the deployment of 5G will likely be determined by how the possibility to adopt reasonable traffic management measures will be interpreted, in an effort to accommodate network slicing and other new business models needed to support the deployment of 5G, yet without compromising the principle of network neutrality.16
Liability of ISPs
As regards the liability of ISPs, pursuant to Article 17 of Legislative Decree No. 70/2003, ISPs are not subject to a general monitoring obligation with regard to content uploaded by their users that ISPs transmit or store; nor are they subject to a general obligation to actively seek facts or circumstances indicating illegal activity. However, when informed of any unlawful conduct or information provided by recipients of their service, they must promptly inform the competent judicial or administrative authority. In addition, upon request by the authorities, they must promptly prohibit access to illegal content. Failure to comply with this requirement may result in their civil liability.
Measures against unsolicited phone calls, faxes, emails and texts
Presidential Decree No. 178/2010 established a Public Objections Register. The Ministry of Economic Development – Department of Communications has entrusted the management of the Register to the Ugo Bordoni Foundation (FUB). Anyone, whether a natural or legal person, whose telephone number is listed in public telephone directories can subscribe free of charge to the Register to stop receiving unsolicited sales and marketing calls.
If, notwithstanding the subscription to the Register, an interested person still receives unsolicited calls, he or she can seek the intervention of the Authority for the Protection of Personal Data or a judicial authority.
Article 130 of Legislative Decree No. 196/2003 protects consumers against unsolicited advertising through email, fax or SMS (such as spam) by requiring their prior consent to the use of personal data for commercial purposes.
On 4 February 2018, Law No. 5/2018 (the Telemarketing Law) entered into force, introducing new provisions on the functioning of the Public Objections Register. The main feature of the reform is the possibility to be included in the Register also when using mobile numbers and landlines not registered in telephone directories.
Law No. 43/2015 converted into law the Anti-Terrorism Decree.17 It contains urgent measures for the fight against international terrorism. To protect national security, the Law introduces measures to counter proselytising activities organised through the use of the internet. The use of IT tools is considered an aggravating circumstance for crimes related to terrorism or incitement to terrorism committed through IT tools. The Law also provides that the Italian Postal and Communications Police must constantly update a blacklist of websites that are being used for terrorist purposes in order to facilitate police investigation.
With regard to the limitations to self-expression on the internet, there is no criminal provision that specifically targets online defamation. Article 595 of the Italian Criminal Code contains the general provision on defamation. However, it does not refer to defamation committed through the use of the internet, not even as an aggravating circumstance.18
Data protection, privacy and the right to be forgotten
The protection of personal data in electronic communications in Italy is regulated by GDPR,19 which entered into force on 25 May 2018, and the Privacy Code,20 as amended by Legislative Decree No. 101/2018.
The GDPR has significantly changed the current Italian – and broader European – data protection framework. As a general rule,21 any operator in charge of collecting and processing personal data can do so only after obtaining the written consent of the person to whom the data relates or when one of the conditions set forth in Article 6 of the GDPR occurs (for example, when processing personal data is necessary to comply with a legal obligation of the controller; or to protect the vital interests of the data subject). To this end, the operator has to provide the user with any relevant information concerning the purpose of the data collection, including the rights of the user to access such data and to demand its modification or deletion.
Pursuant to Article 32 of the GDPR, network operators are subject to a general obligation of custody to reduce the risk of destruction, loss or unauthorised access to personal data.
Traffic data, meaning data processed for the purpose of conveying a communication on an ECN, must be deleted by the network operator as soon as the communication is complete.22 However, the operator is allowed to store it for a longer period of time – but in any case not longer than six months – if this is necessary for invoicing purposes. Moreover, the operator must also store data for the purposes of crime prevention. The storage period varies depending on the type of data at issue.23 The data to be retained includes the data required to, inter alia: trace and identify the source and the destination of a communication; identify the date, time and duration of a communication; and identify the type of communication. Location data (i.e., data indicating the geographical position of the terminal equipment of the user of a publicly available electronic communications service) can be processed only with the user's agreement, and provided that the user maintains his or her right to request the competent network operator to stop the processing, even temporarily. Users' consent is also required for the storing and accessing of cookies in their computers as well as any handheld device (i.e., any terminal).
Operators must adopt all the appropriate technical means to protect personal data. Pursuant to Article 126 of the Privacy Code, location data can only be processed when it is made anonymous (or with the prior consent of users, revocable at any time) and to the extent and for the duration necessary for the provision of the service requested.
Failure to comply with these requirements may result in the application of both administrative fines and criminal sanctions.24
The operator processing the data has to inform AGCOM, the Italian Privacy Authority and the data subject about any risk of breach of network security, or about any breach of personal data that has occurred.
Privacy concerns also underlie the right to be forgotten, which is the right for individuals to have information about themselves deleted from the internet so that they cannot be found through search engines.25
At the national level, one of the most prominent judgments in this field was rendered by the Court of Cassation in Google v. Vivi Down,26 concerning the broadcasting on Google Video of a video showing some boys humiliating a fellow student suffering from Down's syndrome, and also insulting the Vivi Down association. Google's managers faced criminal charges for failing to prevent online defamation and for having unlawfully processed personal data concerning the health condition of the boy. However, in the end, they were acquitted of all charges.
The Court of Cassation specified the characteristics of the right to be forgotten in a case27 concerning the breach of such right by both the director and the publisher of an online newspaper due to the prolonged permanence online of an article on a criminal issue that had involved the plaintiffs in the past and was still pending. The Court specifically identified the unlawful processing of personal data in the maintenance of a direct and easy access to that article through the search engine, and not in the original methods of publication or in its archiving.
The Court of Cassation identified some balancing criteria aimed at settling the conflict between the right of an individual to be forgotten and the opposing right for the media to report news.28 The Court established certain conditions that legitimate a compression of the right to be forgotten, such as:
- the contribution made by the news to a debate in the public interest;
- reasons of justice, police matters, protection of rights and scientific, educational or cultural freedom;
- the status of the public person of the subject involved;
- the truthfulness, actuality and continence of the news; and
- the granting of the right of reply before the spreading of the news.
The Court of Cassation further specified these balancing criteria by stating that, when facing a conflict between the right to be forgotten and the opposing right for the media to report news, the judge has to assess the public, concrete and current interest at the mentioning of the identifying elements of the people involved. 29 This mention can be considered legitimate only if it refers to people who are in that moment subject to public interest, both for their notoriety or for their public role; otherwise, the right of such individuals to privacy with respect to past and hurtful events that have no trace in the collective memory has to prevail.
Following the judgment in Google Spain, Google has adopted a template to request the removal of search results deemed to be inappropriate, offensive or harmful to privacy. Alongside this measure, pursuant to Article 17 of the GDPR, data subjects have a right to obtain from the controller erasure of their personal data, inter alia, where the personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, the data subject withdraws consent on which the processing is based or the personal data has been unlawfully processed.
According to Article 140 bis of the Privacy Code, these rights can be enforced before the Italian Privacy Authority or, alternatively, before the judicial authority.
Interception of electronic communications
Law No. 43/2015 modified Article 226 of the implementing provisions to the Code of Criminal Procedure. When it is necessary to acquire information concerning the prevention of crimes having, inter alia, terrorist purposes, committed through the use of electronic devices, the public prosecutor may authorise the interception of communications for a maximum of 40 days. The prosecutor can also authorise the storage of traffic data for up to 24 months and the acquisition of all useful information from telecommunications operators.
Protection of children
Pursuant to Article 34 of the Consolidated Text on Radio and Audiovisual Media Services, as amended by Legislative Decree No. 120/2012, it is, in principle, prohibited to broadcast programmes that, taking into account the time of the broadcast, could seriously harm the physical, psychological and moral development of children, especially if the programmes contain violent or pornographic scenes.
Nevertheless, such programmes can be broadcast upon the request of broadcasting companies provided that they include a parental control system. In particular, they must be marked with an audio and visual signal at the beginning of and during the broadcast.
Legislative Decree No. 203/2017 has entrusted AGCOM with the task of classifying (from the perspective of children's protection) video games and audiovisual works to be spread online. Through Resolution 186/18/CONS, AGCOM issued a public consultation on this topic. By Resolution No. 74/19/CONS, AGCOM adopted the related regulation. In 2003, representatives of ISPs adopted the Italian Self-Regulation Internet and Underage Code, which contains specific provisions to target online child pornography. In June 2017, the Parliament adopted Law No. 71/2017, the first specific law in Italy targeting cyberbullying,30 which introduces measures to prevent the cyberbullying phenomenon, especially by emphasising the role of schools.31 Moreover, a victim of cyberbullying or her or his parents can demand a website operator to remove or obscure any personal data from the internet. If the operator does not comply with the request within 48 hours, the victim can lodge a complaint before the Italian Privacy Authority.
Cybersecurity is a growing policy concern in Italy. The threats in cyberspace can take different forms such as cybercrime, cyberespionage and cyberterrorism. In 2013, the government strengthened the protection of Italian cyberspace by creating a three-layer structure. The first layer is embodied in the Inter-ministerial Committee for the Security of the Republic, which is in charge of elaborating general strategies for national security. On the middle layer, the Decree establishes the creation of a permanent body in charge of connecting all administrations and regulatory bodies involved in the pursuit of strategic cybersecurity objectives. Finally, the Inter-ministerial Centre for Situation Assessment and Strategic Planning coordinates the recovery of systems functionality after an attack.
The National Anti-Crime Computer Centre for Critical Infrastructure Protection is a branch of the Italian police in charge of intervening to prevent and fight cyberattacks, cybercrime and industrial espionage in sensitive areas, such as defence, telecommunications and energy. The Italian police has also entered into various agreements with telecoms operators providing for the exchange of data and information in order to prevent, detect and fight cyberattacks.
In June 2016, within the framework of the National Conference on Cyber Warfare held in Rome, the creation of the first European Centre for Advanced Cybersecurity, based in Italy, was announced.
In 2017, the government adopted the national plan for cybersecurity based on 11 points that cover all aspects of individual, state, industrial and military security.
The legal landscape in this sector has also been impacted by the Directive EU/2016/1148 on Security of Network and Information Systems (the NIS Directive), implemented by Legislative Decree No. 65/2018. The NIS Directive is the first EU-wide legislation on cybersecurity and introduces significant fines based on a percentage of global turnover, similar to the regime imposed for antitrust violations. It also identifies the authorities responsible for implementing the measures required by the directive for economic sectors that are considered to be strategic.
In general, IT security is another important strategic area for investment in 2020. Ongoing digital transformation projects are increasingly based on mobile technologies and the internet of things. This exposes companies to security risks more than ever before. Attacks are becoming more sophisticated and diversified. Increasing infrastructural and architectural complexity is therefore contributing to an growth in the need to defend networks, systems and data.32
Radio spectrum is an essential resource for telecommunications networks. It is the basis for wireless communications, but it is also key in areas such as broadcasting, transport, defence, environmental protection and energy. Due to the increasingly urgent demand for this scarce resource, spectrum policy has become crucial at both European and national level.
The management of the Italian RF spectrum is entrusted to the Ministry of Economic Development and AGCOM. The Ministry elaborates the national frequency allocation plan, which divides radio spectrum into frequency bands and assigns each band to services and users.
On this basis, AGCOM adopts the national frequency assignment plan, which determines the location of radio stations and the frequencies assigned to each of them. The final allocation of frequencies and the granting of the related rights of use is made by the Ministry of Economic Development following a call for applications by network operators. Both the allocation and the assignment of RFs has to be based on objective, transparent, non-discriminatory and proportionate criteria.33
Implementing Decision (EU) No. 899/2017, the Budget Law for 2018 entrusted AGCOM with the definition of procedures to reassign the 700MHz frequency, currently used for DTTV broadcasting, to mobile broadband wireless services for the development of 5G (re-farming), and the adoption of a new frequency assignment plan for frequencies to be allocated to DTTV, to provide a new framework for the DTTV service.
In 2017, the Ministry of Economic Developments launched a selection for the realisation of 5G trials in five big and medium-sized cities for a duration of four years, namely Milan, Prato, L'Aquila, Bari and Matera. The requirements for the trials are (1) efficient use of the 3.7–3.8GHz band; (2) adoption of technical solutions within those offered by 5G (including network slicing); and (3) implementation of at least one of the three use cases defined by the International Telecommunication Union (i.e., eMBB, m-MTC, and URLLC). The trials have been awarded to three groups of companies: (1) Vodafone, in technical partnership with industry and the Public Administration; (2) WindTre and Open Fiber; and (3) TIM, Fastweb and Huawei Italy.
Through Resolution 290/18/CONS, AGCOM adopted the new frequency assignment plan for frequencies to be allocated to DTTV. The plan indicates 15 new digital terrestrial networks: 10 national networks in the UHF band, four local networks in the UHF band and a regional network in the III VHF band.
The Budget Law for 2019 eliminated the restriction that required one-third of the available frequencies to be assigned for the dissemination of information of local interest. The previous frequency assignment plan was therefore updated with AGCOM Resolution No. 39/19/CONS.
During 2019 and the first half of 2020, with a view to promoting 5G and, more generally, innovative services provided through mobile radio networks, in line with the EU regulatory framework, AGCOM conducted a public consultation (referred to in Resolution No. 119/19/CONS) on the possible use of frequencies in the 1427–1452 MHz and 1492–1517 MHz bands recently harmonised at the EU level, pursuant to EU Implementing Decision 2018/661.34
AGCOM also provided numerous opinions to the Ministry of Economic Affairs. These opinions represent a secondary form of standardisation aimed at ensuring uniformity of application of the regulatory framework within national spectrum management. They concerned, among other things: the shared use of frequencies between operators for the construction of 5G networks; the transfer or rental of rights to use frequencies; the general authorisation for mobile network services; and reframing towards new mobile radio technologies.35
In 2019, AGCOM also actively collaborated with the two main EU bodies responsible for radio spectrum regulation and policymaking: the Radio Spectrum Committee (RSC)36 and the Radio Spectrum Policy Group (RSPG).37
ii Flexible spectrum use
Following the European trend,38 the Italian regulatory framework concerning spectrum use has become more flexible. The intention is to promote spectrum sharing, not necessarily limited to a particular frequency band, as a spectrum management tool.
In July 2015, the Ministry of Economic Development, together with FUB, started an experiment on the 2.3GHz band, comprising the full sharing of spectrum by licensed and unlicensed operators.
On the basis of the results of this experiment, through Resolution No. 121/16/CONS AGCOM launched a public consultation concerning the licensed shared access to radio spectrum. The consultation concerned the extent to which a public or private frequency owner should share the portion of the spectrum that is not being used with one or more licensees on a voluntary or mandatory basis, without the risk of interferences that could impair the normal operation of its systems. The outcome of the public consultation, summarised in a document published on AGCOM's website in November 2016, showed that the participants considered the licensed shared access approach to be particularly convenient with regards to spectrum portions that cannot be quickly diverted from the use to which they are assigned or that cannot be easily released by current incumbents.
On this basis, AGCOM is currently evaluating innovative forms of spectrum sharing, such as the collective use of (unlicensed) bands under licensed assisted access.
Pursuant to Article 14-ter of the Code, owners of allocated frequencies can trade them or allow other entities to use them through a lease. The owner has to notify both the Ministry of Economic Development and AGCOM of the intention to trade such frequencies. The authorities can impose a ban on the intended transfer of frequencies if the rights to use them were obtained free of charge.
iii Broadband and next-generation mobile spectrum use
Following the Radio Spectrum Policy Programme elaborated at the EU level,39 AGCOM aims to boost the development of broadband services in Italy through efficient assignment of frequencies.
Considering the increasing market demand for wireless broadband services, AGCOM has defined the rules for the assignment of the 3,600–3,800MHz band in Resolution No. 659/15/CONS. The Resolution establishes coverage obligations to meet the demand for high-speed connectivity services to implement the national strategy for ultra-broadband.
Following the European Commission's call to make the 700MHz frequency available to mobile broadband to implement 4G and 5G technology across Europe, Law No. 205/2017 (Budget Law for 2018) regulates the process that will lead, in the four-year period running from 2018 to 2022, to the assignation of the 700MHz frequency to wireless broadband services.
Through Resolution 231/18/CONS, AGCOM established the procedures for the allocation and the rules for the use of the 5G frequencies; on this basis, in July 2018 the Ministry of Economic Development launched a national auction for the allocation of 5G frequencies. The list of companies admitted to the auction procedure was published on 6 August 2018. On 10 September 2018, the companies presented their initial economic offers; the auction was awarded on 2 October 2018, with offers amounting to €6.55 billion. Vodafone and Telecom have been awarded the generic batch of the 700MHz band, in addition to the reserved portion already awarded to Iliad as a new entrant in the market.
Italy is, therefore, the first European country to have assigned all the pioneering bands for the development of 5G, anticipating the terms set by the European Code of electronic communications.
In Resolution No. 129/19/CONS, AGCOM defined the criteria for converting rights to use frequencies for digital terrestrial services into rights of use of transmission capacity ('refarming').
In September 2018, the Italian parliament launched an inquiry concerning new telecommunications technologies, with particular regard to the transition to 5G and the management of big data. On 9 July 2020, the parliament approved a final document in which it came to the conclusion that 'in order to avoid inefficiencies and duplication of investments the promotion of the establishment of a single network … based on the existing infrastructure appears unavoidable.' It reasoned that 'the benefits of 5G can be achieved only through the deployment of a complete and efficient infrastructure in fibre optics'.
iv Spectrum auctions and fees
The design of the selection procedure for assigning the spectrum can have an impact on competition, particularly how the market structure will look after the assignment. As the uses of the radio spectrum have increased, the application of spectrum by the regulator has developed from a centralised subsystem, where its use was determined by the regulator, to a market-based approach where users compete for spectrum. The Italian regulatory authorities believe that competitive procedures, namely auctions, are the most appropriate means to assign RFs to interested network operators. The merits of auctions are their transparency and capacity to attract foreign capital, and the fact that they allow the legislator to set a certain threshold of financial gain.
Auctions are generally structured as an open procedure with a simultaneous multiple roundascending mechanism. A large number of licences are simultaneously placed for sale and potential buyers call prices up during each round.
Only one operator for each group of companies is allowed to participate to avoid any risk of collusion and anticompetitive hoarding of frequencies. Participation in the auction must also be secured by an appropriate security deposit. Auction procedures have been used in Italy to assign the right of use for the 3.5GHz, 800MHz, 1,800MHz, 2,000MHz, 2,600MHz and 1,452–1,492MHz bands and, more recently, for the 5G frequencies (694–790MHz, 3,600–3,800MHz and 26.5–27.5GHz).
As for 5G, AGCOM's auction regulation promoted the efficient use of spectrum by means of innovative auction tools, such as 'use it or lease it' clauses (aimed at incentivising an efficient exploitation of spectral resources, these clauses provide that operators without frequencies in specific bands can use the frequencies in those bands that are not used by the licensees in a number of Italian municipalities included in a 'free list'), as well as 'club use' clauses (according to which each licensee can use all the awarded spectrum in areas where frequencies are not used by other licensees. To this end, each licence holder has pre-emptive rights on its assigned lot).
Moreover, the auction format included some special rules for new entrants, such as reserved spectrum, more lenient minimum coverage obligations and a right to national roaming (i.e., under specific circumstances, incumbent mobile operators that win spectrum in the 700MHz band must offer national roaming to new entrants on fair, non-discriminatory and transparent conditions). Additionally, to ensure competition between operators, a cap on the amount of spectrum that each operator can win was introduced.
AGCOM's regulation also fostered the access and the development of new players in the value chain, including infrastructure-only operators and service providers, who can collaborate with mobile networks operators to offer innovative 5G services. In particular, the obligation according to which each licensee must provide wholesale access to other players for the development of 5G services is aimed at fostering nontelcos (verticals) and their service providers to develop innovative business cases and at ensuring the widest level of 5G coverage and access for all users on the national territory (including also the deep digital divide areas), in line with the objectives of the Italian and the European framework.
v International roaming
During 2019 and the first part of 2020, AGCOM applied the European framework for international roaming set out in EU Regulation 2012/531 as amended by EU Regulation 2015/2120 and EU Regulation 2016/2286. In particular, it carried out investigation activities to verify the requests for derogations made under Article 6 quater (2) of EU Regulation 2012/531. This provision sets out conditions for the application that operators may submit in order to obtain a derogation from the ban on surcharges, resulting in four derogations for mobile virtual network operators (MVNOs, i.e., wireless communications service providers that do not own the wireless network infrastructure over which they provide services to their customers). In addition, it carried out intense activity to verify the correct application of the EU regulations to operators' offers and specifically to Digi Italy (Resolution No. 392/19/CONS), Tiscali (Resolution No. 367/19/CONS), Fastweb (Resolution No. 306/19/CONS) and Welcome Italia (Resolution No. 289/19/CONS).
i Regulation of media distribution generally
The Consolidated Text on Radio and Audiovisual Media Services sets out the rules governing the Italian broadcasting system. This regulatory framework includes different provisions for network operators40 and content providers.41
Network operators must obtain a 12-year authorisation granted by the Ministry of Economic Development. However, the authorisation does not entail the automatic allocation of RFs and the right to use them, which has to be obtained separately.
The provision of television and radio content is also subject to a 12-year authorisation granted by the Ministry of Economic Development. Television content providers are additionally required to fulfil the obligations established by AGCOM in Resolution 435/01/CONS.42
Private broadcasters have to comply with a number of limitations and obligations established by law to protect end users. They are required to organise programming based on issuer classification. Therefore, the nature of the authorisation determines the related obligations depending on whether the broadcaster has a commercial, social, information or teleshopping purpose. To this end, ICPs authorised to provide content at the national or local level are required to, inter alia, broadcast news and radio news daily, allow access to their programmes to all political actors on an equal basis and broadcast certain events considered by AGCOM as having a major importance for society, on a free-to-air basis.43
More stringent obligations are imposed on RAI SpA, the concessionaire of the public broadcasting service, which has to be provided throughout the whole national territory (i.e., servicing not only lucrative urban areas, but also rural areas).44 The new service contract between RAI and the Ministry of Economic Development was approved in December 2017 and covers the years 2018 to 2022, replacing the previous one (2010 to 2012). The new service contract focuses on information, the obligations regarding the access to the RAI offer by people with disabilities, and the obligations on broadcast advertising (in this regard, it prohibits advertisements in any form on thematic channels dedicated to children and advertisements on gambling). On the merits of the obligations regarding information, the new service contract requires, among other things, that RAI must activate 'tools aimed at combating the spread of fake news', calling for (1) the establishment of an internal permanent commission; (2) the development of specific educational and didactic content; and (3) the implementation of promotional initiatives regarding the risks deriving from the spread of fake news.
Article 48 of the Consolidated Text on Radio and Audiovisual Media Services assigns AGCOM the task of verifying that general public service broadcasting (and now also multimedia) in accordance with the provisions therein and with the RAI-Ministry of Economic Development National Service Contract.
In general, concerning the regulatory interventions on the prohibition of gambling advertisements, Law Decree No. 87/2018, converted into law by Decree No. 96/2018 (the Dignity Decree), provided for a general prohibition of any form of promotional communication concerning gambling. Law No. 208/2015 attributed to AGCOM supervisory and sanctioning powers concerning gambling advertising (a competence that was previously exercised by the Customs and Monopolies Agency and by the Italian Competition Authority for the aspects connected to unfair commercial practices). With Resolution No. 579/18/CONS, AGCOM published a questionnaire aimed at acquiring useful elements for the purpose of preparing guidelines on this topic. The guidelines were approved with Resolution No. 132/19/CONS.
When it comes to the regulatory measures to fight hate speech, AGCOM, over the past few years, recorded a growing recourse to expressions of discrimination against categories or groups of people, due, for example, to their particular socio-economic status, their ethnicity, their sexual orientation or their religious beliefs. With Resolution No. 403/18/CONS, AGCOM therefore kick-started the procedure for the adoption of a regulation specifically addressing non-discrimination and ending hate speech. The regulatory scheme was submitted to public consultation by Resolution No. 25/19/CONS and it was approved by AGCOM in Resolution No. 157/19/CONS, which adopts the 'Regulation containing material provisions on the respect of human dignity and the principle of non-discrimination and to counteract hate speech'. The Regulation establishes the principles to which audiovisual and radio media service providers under Italian jurisdiction must conform in information and entertainment programmes to ensure respect for human dignity and the fight against hate speech. Pending the implementation of the new EU Audiovisual Media Services Directive, which extends specific obligations to online video sharing platforms, the Italian regulation provides that AGCOM may promote, through regulatory procedures, the adoption – also by platforms – of measures aimed at countering online dissemination, in particular on social media, of content in violation of the principles on the protection of human dignity and on the removal of hate content.
In 2017, AGCOM adopted Resolution No. 41/17/CONS, which identifies the relevant markets in the audiovisual media services sector pursuant to Article 43(2) of the Consolidated Text on Radio and Audiovisual Media Services. The previous procedure concluded by AGCOM in the field of ICS dates back to 2010 (Resolution No. 555/10/CONS). The aim of the resolution is to identify, in a subsequent phase, any positions of dominance or positions likely to harm pluralism in the identified markets.
The Resolution identifies three relevant markets in the audiovisual media services sector: national free-to-air audiovisual media services; local free-to-air audiovisual media services; and national audiovisual media services for payment.
However, AGCOM has specified that the second phase will not take the local free audiovisual media services market into consideration because, following the entry into force of Law No. 9/14, this specific sector has undergone several changes owing to the need to reorganise the terrestrial frequencies.
As regards online distribution of audiovisual content, the Resolution also includes providers of audiovisual online services for payment, such as Netflix. This is because they are considered to be similar to the traditional pay-TV providers, as both services are based on users' subscriptions and offer premium content. On the contrary, the provision of free audiovisual content through websites, social networks such as Facebook or Twitter and search engines such as Google, is deemed to fall outside the market definition of audiovisual media services, because the providers of free online content appear to be competing not with the traditional free-to-air broadcasters, but with the other internet operators.
Considering that the re-farming of the 700MHz band is intended to significantly change the structure of the digital terrestrial broadcasting, with significant repercussions on the offer of audiovisual media services to end users, with Resolution 355/19/CONS AGCOM suspended the terms of the procedure aimed at identifying the relevant markets and any positions of dominance in the audiovisual media services sector until completion of the re-farming of the 700MHz band.
ii Internet-delivered video content
The transition from traditional forms of media distribution and consumption towards digital converged media platforms continues to disrupt and change the commercial foundations of the entertainment and media industry. In Italy, as high-speed broadband connections become more widespread, internet video distribution continues to grow. According to the 15th Report on Communication by Censis–UCSI in 2018, the different forms of TV over internet (such as WebTV, smart TV and IPTV) have a 30.1 per cent audience (+3.3 per cent).
All of the most important TV channels have developed on-demand services that allow users to watch TV programmes online after the original broadcast. In addition to this, many operators have started to provide IPTV services. IPTV allows users to access television broadcasting networks (both in live-streaming and on-demand mode) via an internet broadband connection by using a set-top box (and not via a PC, tablet or smartphone, which can be used for WebTV).45
Although there is no comprehensive law governing the delivery of video content over the internet, by Resolution No. 606/10/CONS and Resolution No. 607/10/CONS, AGCOM has adopted two regulatory measures concerning the provision of audiovisual and radio media services on other electronic media (WebTV, IPTV and mobile TV) and the provision of on-demand audiovisual media services, respectively.
The year in review
i Relevant regulatory measures
Wholesale-only model and the move toward creating a single combined fibre network
At the core of Italy's effort towards a technological development ensuring the evolution of network towards high-speed broadband connectivity and 5G, there is a strong infrastructural commitment, both with regard to the roll-out of fibre optic cabling of fixed networks and with reference to the build-out of the cells and network infrastructure for fifth generation mobile communication. In fact, the characteristics of the network infrastructure necessary for the deployment of 5G highlighted the need for a strong convergence between the two infrastructures, since fibre optic cabling is a prerequisite for the full development of 5G.
Two trends are emerging: the centrality of the wholesale-only model and the push toward a nationwide fibre network supplier that would help to rapidly expand broadband coverage and avoid the expensive duplication of infrastructure.
The three public tenders launched by the Italian Government so far for fibre roll-out for in the 'white areas' of market failure (i.e., those areas where, in the absence of public subsidies, private investment in innovative infrastructure would not take place) have adopted a wholesale-only model. This model envisages a network operator that exclusively manages the network and makes it available (against payment) to companies that intend to use it to sell services to end customers, without being itself a provider of connectivity (both telephone or internet) services to the public. Open Fiber – the fibre-to-the-premise (FTTP) infrastructure provider owned by state lender CDP and the Italian utility Enel – was awarded the three public tenders and epitomises the wholesale-only model.
As a matter of fact, the wholesale-only model is quickly becoming the established model in Europe for fibre network build-out, as all new market entrants have adopted this model. However, while other European countries, including France, Germany and the UK, have wholesale-only operators that are small local companies or individual metropolitan entities (e.g., Cityfibre in the UK), Italy is the only EU Member State where a wholesale-only operator (i.e., Open Fiber) has been established on a national scale.46
The new European Electronic Communications Code (EU Directive 1972/2018), to be transposed by Member States by 21 December 2020, provides in Article 80 that if NRAs conclude that an operator having significant market power is operating on a wholesale-only basis then a light-touch form of regulation will apply such that NRAs may only impose obligations in relation to non-discrimination (Article 70) or access to specific network elements (Article 73). Other remedies (such as transparency, accounting separation, access to civil engineering or cost orientation) will not apply though an obligation to charge 'fair and reasonable pricing' may also be imposed. This shows a certain favour of the European legislator with regard to the wholesale-only model, which appears to be conducive to guarantee equal treatment between operators while channelling and developing investment in the construction of next generation networks.47
Against this background, the Italian government has been intervening to bring together Telecom Italia's (TIM) fibre assets with those of Open Fiber, creating a nationwide fibre network supplier that would contribute to deploy fibre throughout the country and increase broadband coverage (while avoiding ineffective duplication of infrastructure) to meet Italy's push for comprehensive fibre access. By having one national FTTP wholesale provider, which grants 'equal access' to retail providers, the government aims at increasing the likelihood of greater penetration of ultra-fast broadband within a shorter timeframe.
After previous attempts at pooling fibre assets of TIM and Open Fiber have come unstuck, in late August 2020, TIM board approved an agreement with service provider Fastweb and private equity outfit KKR Infrastructure to create a new company into which TIM's existing network will be transferred alongside the fibre network built by FlashFiber, a JV between TIM and Fastweb in which TIM holds an 80 per cent stake. TIM's board also approved a letter of intent with CDP Equity to integrate the combined fibre unit, FiberCop, into a single national network company. According to this plan, FiberCop will permit TIM, Fastweb and other operators to co-invest in fibre coverage across the country. TIM also signed a memorandum of understanding with another operator, Tiscali, to form a partnership to advance fibre broadband through Tiscali's participation in the FiberCop co-investment plan. The merger is anticipated to occur during the first quarter of next year.48
ii Relevant litigation
EU Court of Justice – Judgment in Case C-719/18, Vivendi/Mediaset, 3 September 2020
On 3 September 2020, the European Court of Justice issued its judgment in case C-719/18, ruling that the application by the Italian government of national media plurality laws in relation to Vivendi's acquisition of a minority equity interest in Mediaset was illegal and in breach of fundamental EU Treaty principles. The judgment is noteworthy in stressing that media plurality rules must be applied on a proportionate basis (i.e., taking into account the structure, dynamism and innovation that characterise media markets).
For context, in 2016, the French company Vivendi SA, which is the parent company of a group active in the media sector and in the creation and distribution of audiovisual content, launched a hostile acquisition campaign for shares in Mediaset Italia S.p.A. (Mediaset), an Italian company operating in the same sector and controlled by the Fininvest group. It succeeded in securing 28.8 per cent of Mediaset's share capital and 29.94 per cent of its voting rights.
Mediaset lodged a complaint against Vivendi with the AGCOM, accusing Vivendi of having infringed Article 43(11) of the Consolidated Text on Radio and Audiovisual Media Services, which, with the aim of safeguarding pluralism of information, prohibits companies, the revenue of which 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 ISC, revenue exceeding 10 per cent of the total revenues generated in that system in Italy. That was the case with regard to Vivendi, which already held a significant position in the Italian electronic communications sector by reason of the control that, according to the European Commission, it exerted over Telecom Italia.
Through a decision of 2017, AGCOM declared that Vivendi had infringed that provision of Italian law by acquiring the shares in Mediaset and ordered it to put an end to that infringement.
While complying with the order issued by AGCOM by transferring to a third company 19.19 per cent of the share capital in Mediaset, Vivendi brought an action seeking the annulment of that decision before the Regional Administrative Court. Against that background, the Regional Administrative Court of Lazio asked the Court of Justice, in essence, whether the freedom of establishment enshrined in Article 49 of the Treaty on the Functioning of the European Union (TFEU) precludes legislation of a Member State that has the effect of preventing a company registered in another Member State, the revenue of which in the electronic communications sector at national level, including through controlled or affiliated companies, is in excess of 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 its judgment, the European Court of Justice answered that question in the affirmative. The Court noted, first of all, that Article 49 TFEU precludes any national measure liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the FEU Treaty. That is the case of Article 43(11) prohibiting Vivendi from retaining the shareholdings that it had acquired in Mediaset or that it held in Telecom Italia and thus requiring it to cease to hold those shares in one or other of those undertakings insofar as they exceeded the thresholds laid down in that provision.
Additionally, the Court observed that, even though a restriction on freedom of establishment may, in principle, be justified by 'overriding reasons in the public interest',49 such as the protection of pluralism of information and the media, that is not the case with regard to the provision in question, since it is not appropriate for achieving that objective.
The Court emphasised that EU law, as regards electronic communication services, makes a clear distinction between the production of content and the transmission of content. Accordingly, undertakings active in the electronic communications sector that control the transmission of content do not necessarily have control over the production of that content. However, Article 43(11) does not refer to the links between the production of content and the transmission of content, and it is also not worded in such a way as to apply specifically in relation to those links.
Moreover, the Court observed that Article 43(11) defines the electronic communications sector too restrictively, excluding, in particular, markets which are of increasing importance for the transmission of information, such as mobile telephone retail services and other electronic communications services linked to the internet and satellite broadcasting services. Since these have become the main avenue of access to media, there is no justification for excluding them from that definition.
Furthermore, the Court found that treating a 'controlled company' in the same way as an 'affiliated company' when calculating the revenue of an undertaking in the electronic communications sector or the SIC does not appear reconcilable with the objective pursued by the provision at issue.
The Court concluded that the Italian provision sets thresholds that bear no relation to the risk to media pluralism, 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.
The 28-day invoicing issue before AGCOM and the IIA
Starting from 2015, all the operators informed their customers that the billing and renewal of services provided would be carried out on a four-weekly basis (every 28 days) and not on a monthly basis.
By Resolution No. 121/17/CONS, AGCOM established that the billing period for landline telecommunication services shall be no less than one month and the billing period for mobile telecommunication services shall be no less than 28 days, giving telecommunication operators 90 days to comply with the new provisions. Subsequently, Law No. 172/2017 confirmed Resolution No. 121/17/CONS.
Nonetheless, some operators maintained the 28-day invoicing system. By Resolution No. 269/18/CONS, AGCOM adopted specific measures against TIM, Wind Tre, Vodafone and Fastweb establishing the right of users to the reimbursement (by 30 December 2018) of the eroded days in the period between 23 June 2017 and the day of return to billing on a monthly basis, which took place between February and April 2018. The reimbursement has to be granted through the postponement of the invoicing date for a number of days equal to those illegitimately eroded. At the same time, operators are given the possibility to propose alternative compensation solutions to customers.
The operators appealed Resolution No. 269/18/CONS before the Administrative Court of Lazio (Rome), seeking the suspension of the measures therein adopted. On 21 November 2018, the Administrative Court rejected the appeal,50 reiterating the obligation imposed by AGCOM to reimburse customers by the end of 2018.
TIM, Wind Tre, Vodafone and Fastweb appealed the judgment before the Council of State. On 12 July 2019, the Council of State rejected the appeals,51 confirming the right of customers to the automatic reimbursement of the days illegitimately eroded through the 28-day billing system.
The same invoicing practices by telecom operators has been subject to the assessment of the Italian Antitrust Authority (IAA).52 On 7 February 2018, the IAA initiated proceedings against TIM, Fastweb, Vodafone, Wind Tre and Asstel for allegedly coordinating to preserve an increase of the tariffs charged to end users.
According to the IAA, the alleged coordination between the parties led to the adoption of almost identical implementation methods of the provision of Law No. 172/2017. Within the proceedings initiated to assess the alleged coordination between the operators, on 21 March 2018, the IAA initiated a sub-proceeding to adopt interim measures. It imposed on the operators the duty to suspend, pending the proceeding, the coordination concerning the repricing of the tariffs communicated to their customers, and it required each operator to define the terms of its offers independently from its competitors. The Interim Measure was confirmed on 11 April 2018.53 Interestingly, this was the first interim measure adopted by the IAA in the context of anticompetitive agreement proceedings.
On 28 January 2020, AGCM issued a decision finding that Fastweb, Telecom Italia, Vodafone and Wind Tre participated in a cartel aimed at coordinating their commercial strategies, with a view to keeping prices high during the transition from 28-day billing to monthly billing, thus impeding competition and limiting the risk of customers migrating to other competitors.
More specifically, in the ICA's view, the contested behaviour consisted of: (1) the adoption of identical repricing in the transition to monthly billing, and (2) simultaneous communications to clients, informing them that phone services were soon going to be invoiced on a monthly basis (without entailing any change in the annual price for the services, even though monthly subscription fees would be increased by 8.6 per cent). The ICA found that the contested practices constituted a restriction by object under Article 101 TFEU, amounting to a secret, single, complex and continuous collusive scheme aimed at preserving the existing price level (i.e., the 8.6 per cent increase achieved as a result of the billing adjustments), and preventing customer mobility. Indeed, in the ICA's view, the coordination among the operators was intended to suppress any incentive for customers to exercise their right of withdrawal and, therefore, to freeze the operators' respective market shares by limiting competition on the market.
TAR Lazio – Judgments Nos. 13553, 13556, 13558, 13561, 13564, 13566, 13567, 13568 and 13570/2019 – WiMax licensees
For over a decade, WiMax licensees used the lower end of the spectrum (3.4-3.6 GHz), without commercial success. This technology soon became obsolete. As the licences were nearing their end, the operators applied to extend them for six years until 2029 and to convert them to 5G. At the end of 2018, AGCM and the Ministry of Economic Development granted their requests. They applied modest fee increases ranging from €1 to €40 million. The chosen fee benchmark was the minimum reserve price set for the parallel auction, which at the time was ongoing for the upper-end 5G spectrum (3.6–3.8 GHz) and represented a successful multibillion-euro auction for 5G spectrum.
In particular, auction award prices for 5G spectrum peaked at around €1.7 billion for larger blocks (and about €500 million for smaller ones). So the winning bidders (TIM, Vodafone, Wind Tre and Iliad) ended up paying up to 10 times more than WiMax operators for possibly comparable 5G spectrum rights. Against this background, Fastweb dropped out of the auction and purchased operator Aria's renewed WiMax/5G licence for a much smaller amount.
This sparked a legal battle and the auction winners went to court seeking the annulment of the WiMax licence renewals.
In November 2019, TAR Lazio ruled that the conversion price was wrong. In particular, TAR Lazio found that the renewed licence fees were discriminatory and breached EU rules. The Court reasoned that under the EU regulatory framework, equal treatment is a legal cornerstone to ensure the sound progress of 5G and preserve undistorted competition. Accordingly, national public authorities must anchor spectrum fees to market value, in a transparent manner, for all licensees.54
In the case concerned, the Court ruled that, to ensure equal treatment among licensees, public administrations should have based WiMax license renewal fees on the award prices of the parallel auction for 5G spectrum. Instead, they had used as a parameter the auction's minimum reserve price. This was much lower than the winning bids. So it obviously did not reflect market value. As a result, licence fees unfairly penalised auction winners in favour of WiMax licensees. Nor had the public authorities pointed to any difference in spectrum quality justifying the steep price disparity.
According to the court, after the award, the Ministry and AgCom should have used their price adjustment powers to increase the WiMax licence renewal fees. Establishing a fair balance among the various fees would have avoided discrimination and undue distortions of competition among 5G spectrum users.
However, this does not mean that prices need to be the same, but should reflect the specific features of the WiMax licence renewals, in terms of: (1) actual band quantity; (2) smaller geographic coverage; (3) shorter duration; (4) differences in market potential; and (5) absence of further renewal rights. Not least, the fees should factor in the economic impact of the renewed licence's more limited scope and time frame on the perspectives for return on infrastructure investment. The appeal is pending.
iii IAA intervention regarding the TMT sector
Case A514 – Abusive conducts of Telecom Italia in the ultra-broadband sector
On 25 February 2020, the IAA imposed a fine of approximately €116.1 million on TIM for abusing the dominant position it held both in the national market for wholesale access services to, and in the national market for retail telecommunications services on, the broadband (BB) and ultra-broadband (UBB) fixed network, in violation of Article 102 of the TFUE.
By way of context, on 3 March 2015, the Italian government, in line with the Europe 2020 Agenda, approved the Italian Strategy for High-Speed BB (the Strategy), intended to cover most of the territory of the country with infrastructure capable of offering services at high-speeds.
To implement the Strategy, the government decided to intervene directly in the white areas of market failure. The direct public intervention consisted of building a network of public property to be made available to all operators wishing to activate services for citizens and businesses. In the white areas, it was considered necessary to correct social and geographic inequalities generated by the absence of private initiatives from businesses; and to encourage investments for the spread of passive infrastructure enabling a next generation network access service.
Infratel Italia S.p.A. (Infratel) – an in-house company of the Italian Ministry of Economic Development, tasked with the implementation of the Strategy – periodically carries out a public consultation in order to obtain updated information on the available high-speed BB connectivity offered by telecom operators; identify geographical areas where operators have not so far deployed their own infrastructures (or do not have an interest to do so within the next three years); and, thus, identify the areas eligible for public intervention, which will be affected by the aid measures referred to in the Strategy.
In 2015, Infratel carried out the public consultation for the periodic updating of the map related to the available connectivity and, in 2016, it launched the first two tenders for building an UBB network in the white areas using public funds. TIM actively participated in both tenders, at least in the first phase. In the first tender, it also submitted a bid, ranking second to Open Fiber, a 50:50 joint venture between Enel and Cassa Depositi e Prestiti Equity S.p.A. In the second tender, TIM, after being admitted to participate in the procedure, did not submit an offer. Taking a new approach to infrastructure deployment in the white areas, TIM announced an autonomous coverage plan.
In the final decision, the IAA maintained that TIM had engaged in a single and complex exclusionary strategy qualifying as an abuse of rights, comprising several types of abusive conduct aimed at distorting competition in the wholesale and retail markets for BB and UBB telecom services in Italy. In the IAA's view, TIM's alleged strategy, albeit carried out through conduct that was legitimate in principle, pursued an aim not worthy of protection, that is, to restrict and distort competition in a particularly strategic market for the development of the country, by attempting to hinder the entry of new operators into those markets and unjustifiably preserving its market power. Based on the premise that competition in the telecom sector no longer takes place only in terms of prices, but also in terms of service quality, investment and innovation, the IAA held that the goal of TIM's alleged strategy was to prevent both infrastructure-based competition and competition in the market for retail services.
According to the final decision, TIM's anticompetitive conduct in the wholesale market included raising obstacles to the Infratel tenders for coverage of the white areas with fibre-to-the-home (FTTH) networks, and initiating obstructive legal actions to preserve the historical monopoly of TIM in these territories and to prevent the entry of new competitors, like Open Fiber; and in non-white areas – throughout the rest of the country – repricing its wholesale offer, so as to pre-empt the contestable customer base.
TIM's alleged strategy consisted of: informing Infratel of changes in the scope and mapping of its investments; withdrawing from the subsequent phases of the tenders and starting the unilateral implementation of its investment plan, pending the outcome of the Infratel tenders in the same areas; and, at the same time, initiating groundless and abusive legal proceedings with the aim of hindering the process of the Infratel tenders.
In the IAA's view, TIM's conduct created a situation of uncertainty surrounding the competitive procedures, which put the prospective investments in UBB networks in the white areas at serious risk. This reportedly raised serious doubts about the sustainability of the investments planned by its competitors, such as Open Fiber, which planned to build more innovative networks than those of TIM. As a result, according to the IAA, TIM's alleged strategy prevented the development of infrastructure-based competition in Italy, thereby preserving technologically inferior solutions. In fact, in the IAA's view, the change in TIM's investments plan and the legal proceedings brought by the company delayed the award of the Infratel tenders, whereas TIM achieved in a few months an alternative coverage of the white areas with technologically sub-optimal investments.
According to the IAA, TIM's alleged strategy in the wholesale market extended also to the non-white areas through a repricing policy concerning its wholesale offer, aimed at securing the maximum share of fixed lines to TIM's network before the FTTH coverage announced by Open Fiber could become available. In the IAA's view, such conduct represented the other pillar of TIM's exclusionary strategy in the wholesale market: TIM's conduct allegedly aimed at causing the failure of the Infratel tenders, so as to prevent Open Fiber from entering the white areas dominated by TIM. Moreover, according to the IAA, in the non-white areas TIM completely reformulated the terms of its wholesale offer to pre-empt the contestable customer base. In particular, in the IAA's view, TIM significantly reduced the FTTH Virtual Unbundled Local Access (VULA) prices, and started marketing a new version of its Easy Fiber offer, which notably included lock-in clauses.
The final decision also alleges that TIM engaged in abusive conduct aimed at securing new customers in the new UBB telecom services retail segment.
In the IAA's view, TIM launched retail offers aimed at pre-empting the relevant market's contestable demand and, therefore, at unduly preserving its market share: in particular, by increasing switching costs, TIM allegedly secured the maximum share of contestable customers, in order to strengthen the pre-emption of and lock-in effects for customers that the company had already pursued in the wholesale market. To this end, TIM allegedly also set terms and conditions binding customers for an excessively long period of time.
The pre-emption of the most profitable demand segment, in the IAA's view, pursued a twofold anticompetitive objective: to drain the residual demand available to Open Fiber, by maximising the share of captive demand, compared to alternative wholesale access service providers; and to strengthen TIM's dominant position also in the market for retail services, to the detriment of the alternative operators' commercial offers.
iv Other activities
AGCOM, IAA and the Italian Data Protection Supervisor – Guidelines and policy recommendations on big data
On 2 July 2019, the IAA, AGCOM and the Italian Data Protection Supervisor made public a set of guidelines and policy recommendations concerning big data and the digital sector in general, fitting into the context of the big data survey jointly launched by the three authorities.
Among various policy recommendations, in the guidelines and policy recommendations attached to the final report on big data, the authorities:
- stressed the importance of antitrust enforcement and, in particular, tackling abusive conduct and restrictive agreements in the digital economy, which may be facilitated by the development of new software and sophisticated algorithms (point 7). To safeguard consumer welfare, they suggested not to limit the antitrust analysis to the traditional parameters linked to prices and quantities, but to extend it to quality, innovation and fairness; and
- asked the competent authorities to reform national and international merger control rules (point 8). In their view, competition authorities should be entrusted with the power to assess mergers that fall under statutory thresholds, in order to avoid 'killer acquisitions', which may negatively affect the competitive pressure exercised by small and innovative start-ups. In addition, the authorities asked the parliament to introduce the EU merger control test (namely, the substantial impediment to effective competition (SIEC) standard) into Article 6(1) of Law No. 287/90, as this test would better serve the competitive challenges of the digital era.
IC53 – Big Data: AGCOM, IAA and Data Protection Authority survey published
On May 30, 2017, AGCOM, the IAA and the Italian Data Protection Authority (IDPA) and AGCOM launched a joint sector inquiry into the effects of big data and its consequences in relation to the current economic, political and social context and the regulatory framework in force.55 Between November 2017 and November 2018, the three authorities sent out requests for information to market participants and held hearings with representatives of firms active in the telecommunications, media, over-the-top, information technology, insurance and banking sectors, as well as with experts in the field. In June 2018, the ICA and the ICMA published interim reports with their preliminary findings. Moreover, on July 10, 2019, the three authorities published guidelines and policy recommendations, anticipating the findings of the final report. Finally, on 10 February 2020, the three authorities issued the final report. In the report, the three authorities separately give their take on big data.56
AGCOM noted, inter alia, that the concentration of big data in the hands of a few online platforms could lead to the creation of dominant positions in the media sector. In this respect, AGCOM found that OTT companies offer services that very often are in direct competition with traditional electronic communications services. This convergence brought traditional telecommunications service providers to ask for a regulatory level playing field, which includes consolidated rules on access rights and interconnection services.
The IDPA stressed the importance of providing users with transparent information when asking for their permission to use their data. Companies must always specify for which purposes they are asking data, and must be taken accountable for any misuse. According to the IDPA, this preliminary information has a competitive value, as it can influence consumers' commercial choices, just like preliminary information on products. In particular, in the case of goods provided for free, the IDPA stated that it is crucial that the owner of the data is able to: (1) monitor the use that companies will make of their data; and (2) check whether this use is compliant with the purposes that were initially declared.
According to the IAA, big data can play a crucial role in the assessment of the competitiveness of data-driven economies, as it is one of the factors that may increase concentration and barriers to entry in digital markets. For instance, in two-sided markets big data can increase network effects, scale and scope economies, as well as switching costs, by creating lock-in effects. In addition, big data can act as a barrier to entry in those markets where firms are able to exploit machine learning algorithms and mechanisms to gain a significant competitive advantage.
In the IAA's view, all the pillars of competition law may be concerned when dealing with big data and privacy issues. For instance:
- in merger control, competition authorities may also start assessing the effects of a concentration on privacy in a similar way to how they look at the effects on prices;
- horizontal agreements aimed at lowering privacy standards can be treated as agreements aimed at raising prices. Moreover, agreements between firms that have as their object the sharing of personal data of their users may raise critical issues where they could facilitate coordination of the commercial policies of these companies; and
- finally, the conduct of firms having 'too much' data (resulting in strong market power) may be assessed under Article 102 TFEU as exploitative or exclusionary abuses.
Conduct aimed at using big data to draw accurate profiles of consumer preferences and engage in price discrimination between customers may potentially constitute a form of imposition of unfair trading conditions under Article 102(a) TFEU. However, in order to assess whether price discrimination at a retail level can be considered lawful or not, it is important to build up a test that factors in both the utility for the consumers that end up paying a lower price than the market price, and the disutility for those who end up paying a higher price.
In the IAA's view, big data can also facilitate forms of refusal to deal. However, a refusal to grant access to data may constitute an obstacle to competition and result in abusive conduct, in the form of a refusal to contract, only in exceptional circumstances (i.e., where, taking into account the specificity, quantity and quality of the data concerned, the latter incorporates the stringent requirements of an essential facility for the provision of a particular service). Moreover, the IAA emphasised that data analysis and processing activities (analytics, cloud computing and data storage) can facilitate the implementation of other exclusionary practices. In particular, possible abuses of dominant position may take place where a dominant firm (1) uses data collected in a market to unduly extend its market power through anticompetitive conduct such as tying (leveraging), or (2) provides services to a third party against which it competes at a different level of the supply chain (discriminatory practices).
v Mergers in the media sector
Terzo Fondo F2i/Persidera
On 4 September 2019, the IAA launched an investigation on the acquisition of control of Persidera S.p.A. (Persidera), a network operator active in the digital terrestrial broadcasting market (DTT) by Terzo Fondo per le Infrastrutture, set up and managed by F2i SGR S.p.A. (F2i).
The merger involved the demerger of Persidera and of its subsidiary TIMB2 Srl in two newly established companies: NetCo, which will hold the business unit of radio and television broadcasting infrastructures on terrestrial frequencies, and MuxCo, which will hold purely intangible assets (ownership of the right of use) and some network assets, also managing commercial relationships with audiovisual media service providers.
NetCo was to be acquired by EI Towers S.p.A. (EI Towers), while MuxCo would have been acquired by F2i SGR.
The merger was deemed likely to lead to the strengthening of new merged entity's dominant position, leading to a risk of total or partial foreclosure of inputs for network operators in the market for television broadcasting infrastructure and in the related downstream markets, in particular, in the markets for (1) digital broadcasting, (2) free television, (3) pay television and (4) television advertising sales. Moreover, coordination effects were found, due to possible exchanges of information through EI Towers, to some contractual mechanisms that incentivised the raising of transmission capacity prices. For these reasons, the IAA cleared the transaction conditional on the fulfilment of certain measures. This measures consist of obligations to access and provide hospitality, maintenance and full support services to network operators under fair, transparent and non-discriminatory conditions and, in any case, not worse than the current ones. The measures also concern the amendment of the shareholders' agreements of 16 July 2018 between F2i and Mediaset concerning EI Towers, as well as the Statute of EI Towers itself.
Conclusions and outlook
This past year has undoubtedly been one of great change.
The disruption caused by the covid-19 outbreak had a significant impact on the telecommunications ecosystem, and yet it highlighted the importance of network development towards high-speed broadband connectivity and 5G across the country, allowing the transmission of significantly higher amounts of data in a very short time, also favouring the path to the convergence of fixed, mobile and broadcasting services.
Despite economic turmoil and market uncertainty, some segments continue expanding. The information technology market in 2019 recorded a total expenditure of over €24.2 billion, growing by 3.8 per cent compared to 2018. In 2020, this market is expected to growth of 1.9 per cent compared to 2019 (corresponding to €24.7 billion), mainly thanks to the software component (in 2020 equal to €7.3 billion, up 6.3 per cent compared to 2019).57 This reflects the constant trend that sees Italian companies' shifting from investments from more traditional ICT towards innovative solutions and technologies to support digital transformation projects (cloud computing, big data and analytics, social business and mobility) and innovation accelerators (internet of things,58 artificial intelligence,59 blockchain, virtual and augmented reality,60 robotics, new generation security, 3D printers) continues and consolidates.61 In terms of volume and growth, the public cloud services sector is the one that contributes most to the transformation of Italian companies' spending in terms of evolution and innovation. The public cloud services sector in Italy exceeded €2 billion in 2019 owing to a 26.1 per cent increase compared to 2018, and is expected to exceed €2.5 billion at the end of 2020.62
Throughout 2019 and 2020, Italy has continued to show its commitment to further improving its telecommunications infrastructure and developing new telecommunications and media technologies to be implemented in future years.
Looking ahead, the right regulatory balance must be struck in order to channel investment to the construction of next generation networks. The wholesale-only model and the trend toward a nationwide fibre network supplier that would contribute to deploy fibre throughout the country and increase broadband coverage (while avoiding ineffective duplication of infrastructure) must be juggled in order to meet Italy's push for comprehensive fibre access and achieve greater penetration of ultra-fast broadband within a shorter time frame, also leveraging the new tools set forth in the European Electronic Communications Code.
The development of telecommunications, media and technology policies in Italy has seen a resurgence over the past several years, and further significant progress is likely in the near future.
1 Marco D'Ostuni is a partner, Marco Zotta is a senior attorney and Riccardo Tremolada is an associate at Cleary Gottlieb Steen & Hamilton LLP.
2 See European Commission, A European Strategy for Data, COM (2020) 66 final; and European Commission, Shaping Europe's Digital Future, February 2020. See also European Commission, White Paper on Artificial Intelligence- a European Approach to Excellence and Trust, COM (2020) 65 final.
3 On 3 September 2020, the Court of Justice of the European Union gave its judgment in case C-719/18, Vivendi/Mediaset. The case is addressed below (see Section VI.ii).
4 See Articles 26 and 27 of Legislative Decree No. 259/2003.
5 Pursuant to Article 2(g) of Law No. 112/2004, the ICS is 'the economic sector that includes the following activities: newspapers and periodicals; electronic publishing including the internet; radio and television; cinema; external advertising; product and service announcements and sponsorship'.
6 Article 43 has been significantly affected by the EU Court of Justice Judgment in Case C-719/18, Vivendi/Mediaset of 3 September 2020 (see Section VI.ii).
7 With the aim of increasing the degree of transparency of markets and ensuring a correct application of the regulations on pluralism and competition, AGCOM, through the IES tool, has progressively refined the process of collecting data of operators active in the different phases of the online advertising chain, including the resources achieved through the sale of products and services online within the ICS economic area. In other words, the set of data has been adapted over time to respond to the developments that have taken place, which have concerned different aspects of the process of buying and selling online advertising (advertising formats, naming and profiling techniques, automation of the interaction between supply and demand, and price formation), as well as innovative ways of offering audiovisual services and online publishing products.
8 AGCOM also monitors online platforms offering instant messaging services, which must be registered with the RCO in connection with the direct or indirect use of national numbering resources for mobile and personal communications services.
9 Article 43 has been significantly affected by the EU Court of Justice Judgment in Case C-719/18, Vivendi/Mediaset of 3 September 2020 (see Section VI.ii).
10 Decision No. 356/19/CONS.
11 This includes the activities conducted within the roundtable on the guarantee of pluralism and correctness of information on digital platforms. This was set up for two purposes. First, to promote a greater understanding of the phenomenon of online disinformation through the active participation of stakeholders in the information system. Second, to promote the first measures to combat disinformation through the adoption of voluntary and self and co-regulation tools that directly involve online platforms. See AGCOM, Resolution No. 423/17/CONS.
12 The results of the consultation showed a widespread consensus on, inter alia, the following issues: the idea that applying forms of traffic management does not constitute per se a market failure or a reduction in the opportunities available to the end user; and the fact that pricing (e.g., choosing between flat-rate pricing and usage-based pricing) considerably affects the use of internet-based services. The results are available at www.agcom.it/le-risultanze-delle-consultazioni-gennaio-2012-.
13 AGCOM, Annual report, 2019, p. 77.
15 See Italian Chamber of Deputies, IX Committee, Hearing of AGCOM Secretary General, Filippo Arena, on the factfinding investigation concerning 'New telecommunications technologies with particular regard to the transition to 5G and the management of big data.' Rome, 18 September 2019.
17 Law Decree No. 7/2015.
18 Nonetheless, Italian courts often use this provision to address online defamation.
19 Regulation (EU) No. 2016/679.
20 Legislative Decree No. 196/2003.
21 Article 23 of the Privacy Code.
22 Article 123, Section 1, of the Privacy Code. The exact moment of completion of the transmission of a communication depends on the type of ECS provided. For example, for a telephone call, the transmission will be completed when one of the users ends the connection. For an email, it will be when the recipient collects the message from the server of his or her service provider.
23 Articles 123 and 132 of the Privacy Code.
24 Articles 162 and 167 of the Privacy Code.
25 This principle has been affirmed by the European Court of Justice in case C-131/12, Google Spain SL, Google Inc v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzales, 13 May 2014.
26 Court of Cassation, judgment No. 5107/14 of 17 December 2013.
27 Court of Cassation, judgment No. 13161 of 24 June 2016.
28 Court of Cassation, judgment No. 6919 of 20 March 2018.
29 Court of Cassation, judgment No. 19681 of 22 July 2019.
30 Law No. 71/1017.
31 See Articles 2 and 4 of Law No. 71/2017.
32 Assintel report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 82.
33 Article 14, Section 1 of the Code.
34 AGCOM, Annual report, 2020, pp. 85–86.
35 AGCOM, Annual report, 2020, pp. 85–86.
36 The main issues addressed through the internal coordination of the RSC Committee concerned: (1) studies on updating Decision 2008/671/EC concerning the harmonised use of the extended 5.9 GHz band; (2) updating Decision 2012/688/EU concerning the technical conditions of use of the 2100 MHz FDD band, currently being adopted; (3) amending Decision 2008/477/EC concerning the technical conditions of use of the 2 band. (4) adopting Decision (EU) 2019/785 on spectrum harmonisation for ultra-wide-band equipment (UWB) replacing Decision 2007/131/EC; (5) new provisions regarding the harmonisation of the 26 GHz band for 5G use adopted by Decisions (EU) 2019/784 and (EU) 2020/590; (6) adopting Decision (EU) 2019/1345 on the seventh update of the framework for the use of spectrum for unlicensed SRD systems under Decision 2006/771/EC and Guidelines to the CEPT for the subsequent update.
37 RSPG, established by Commission Decision No. 2019/C196/08, adopts opinions and reports to assist and provide strategic advice to the Commission and other European institutions (Parliament and Council) on radio spectrum policy issues and on European coordination of implementation measures. AGCOM's participation in the RSPG also contributed to the adoption of the Report on the European Spectrum Strategy, which outlined the six guidelines for action to promote and develop use of radio spectrum for the benefit of users. These guidelines are: (1) the consideration of the requirements of all spectrum users; (2) innovation; (3) sharing; (4) harmonisation; (5) development of receivers and standards; and (6) market mechanisms.
38 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Promoting the shared use of radio spectrum resources in the internal market, COM (2012) 478 Final, 3 September 2012.
39 Decision No. 243/2012/EU. Regarding the 5G pioneer bands (700MHz, 3,400–3,800MHz and 26GHz bands), EU legislation has laid down a number of deadlines to facilitate the roll-out of 5G, subject to certain exceptions for justified reasons, namely: (1) Member States are required to allow the use of the 700MHz band for terrestrial wireless broadband communications services by 30 June 2020; and (2) the European Electronic Communications Code requires Member States, by 31 December 2020, to reorganise and allow the use of sufficiently large blocks of the 3,400–3,800MHz band and to allow the use of at least 1GHz of the 26GHz band, subject to demand and to any significant constraints on migration of existing users or band clearance.
40 Article 2(1)(c) of the Consolidated Text on Radio and Audiovisual Media Services defines a network operator as 'the holder of the right to install, provide and operate an electronic communications network via digital, cable or satellite on terrestrial frequencies and the right to provide installations for the transmission, multiplexing, distribution and dissemination of frequency resources that allow the transmission of programmes to users.'
41 Article 2(1)(d) of the Consolidated Text on Radio and Audiovisual Media Services defines content providers as 'the person who has the editorial responsibility for the preparation of television or radio programmes and related data-programmes to be broadcast, even with conditional access, on terrestrial frequencies via digital, cable or satellite or by any other means of electronic communication and who is entitled to carry out commercial and publishing activities related to the diffusion of the images or sounds and related data.'
42 For example, pursuant to Article 6 of the Regulation content providers are required to store the complete recording of television programmes for a period of three months following broadcasting. Pursuant to Article 10, they must also reserve at least 20 minutes per week for advertising European works.
43 See Article 7 of the Consolidated Text on Radio and Audiovisual Media Services and AGCOM Resolution No. 131/12/CONS.
44 See Article 45 of the Consolidated Text on Radio and Audiovisual Media Services.
45 In 2015, the most widespread WebTV, Netflix, made its debut on the Italian market.
46 See Italian Chamber of Deputies, Survey on new technologies in telecommunications, with particular regard to the transition to 5G and the management of the big data, 9 July 2020. The only other examples of wholesale only operators on a national scale, born on very different assumptions from the Italian context, are in Australia (where the government has purchased the legacy copper network of the incumbent operator) and New Zealand (where the government has financed the ultra-broadband network on a national scale and not only in white areas). ibid.
47 The wholesale-only model is not the only new regulatory model promoted by the European Electronic Communications Code: there is also the co-investment model to which the code reserves more favourable regulatory treatment. Under Article 76 where an operator having significant market power enters into a co-investment arrangement with a competitor in respect of a plan to build fibre to the premises (for fixed networks) or base station (for mobile ones) then in some cases the newly-built assets may be exempt from access remedies that would otherwise have applied as a consequence of the SMP status. Any such arrangement must offer genuine risk-sharing on a co-ownership model and there are various other conditions that must apply too. Specifically, the programme must be open at any point in its lifetime to other service providers to join (though the price they pay may reflect the differing levels of risk applicable at different times). It must also facilitate downstream competition and access seekers who do not participate must still be able to access the same set of services as were available to them before the investment, adapting over time to improving levels of service and quality.
48 See TIM's press release, TIM, KKR Infrastructure and Fastweb: Agreement to create FiberCop reached. Approved letter of intents with CDP Equity to create single national network company through integration with Open Fiber, 31 August 2020, available at https://www.gruppotim.it/en/press-archive/corporate/2020/PR-TIM-FiberCop-Access.html
49 id., paragraphs 55–59.
50 Judgments Nos. 11303, 11304, 11305 and 11306 of 21 November 2018.
51 Judgment No. 4913 of 12 July 2019.
52 Case I820.
53 ICA Interim Decision of 11 April 11 2018, No. 27112.
54 See Directive 2002/20/EC, Recital 32, and Directive 2002/21/EC, Articles 8 and 13 (transposed into Articles 13.6 bis, 14.1 and 35 of the Italian Electronic Communications Code)).
55 IAA Decision No. 217/17/CONS; ICA Decision No. 2660 of 30 May 2017, Case IC53; IDPA Decision of 11 May 2017.
56 See IAA, Big data Interim report nell'ambito dell'indagine conoscitiva di cui alla delibera No. 217/17/CONS, published on 8 June 2018.
57 This trend is expected to consolidate also in the following years with an overall growth in IT investments for the period 2018–2022 of 2.6 per cent, which will bring this market to a value of just under €26 billion in 2022. Assintel Report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 22.
58 In Italy, IoT spending in 2019 amounted to €15.6 billion, an increase of 24 per cent compared to 2018. The positive trend is expected to continue in 2020 (up 19 per cent) and will lead the market to reach a total volume of just under €18.6 billion. Assintel Report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 62.
59 In 2019, with an expected expenditure of 425 million euros, the artificial intelligence market in Italy will grow by 39.1 per cent. In 2020, forecasts indicate an increase of 34 per cent and a final expenditure volume of €570 million. Assintel Report 2020, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 62.
60 Specifically, the virtual and augmented reality market absorbs a 2019 expenditure of €16 million, an increase of 160.5 per cent compared to the previous year and with a growth forecast for 2020 of 285.6 per cent, which will lead the market to exceed €61 million. Assintel Report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 62.
61 Assintel Report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, pp. 21–22.
62 In 2019, software as a service expenditure accounted for about 65 per cent of the total public cloud, for a total value exceeding €1.3 billion, up 23.7 per cent on 2018 and expected to grow by 21.9 per cent in 2020. The platform as a service market, thanks to a total expenditure volume of €275 million in 2019, shows growth of 30.6 per cent on 2018 and is expected to reach €356 million in 2020 (up 29.5 per cent). Equally positive results are estimated for the infrastructure as a service market, which in 2019 grew by 31 per cent thanks to an expenditure of €443 million and in 2020 will reach €571 million (up 28.8 per cent). Assintel Report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 66. Disputes related to cloud computing are likely to increase, especially in the context of the high-value tenders for the supply of cloud services to the public administration launched by the Italian public sector purchasing authority (Consip) in an effort to speed up the public-sector digitisation process.