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This will certainly be a trend common to all the Member States, given the EU-wide reach of the measures affecting Internet service providers. However, these reforms are likely to have a special impact on the existing legal framework in Italy most notably because of recent legislative, regulatory and judicial stances.


As to the former ones, Italy undertook a broad reform of the AVMS Code (Legislative Decree no. 177/2005) prior than the REFIT of the AVMS Directive could take place. Such reform was launched by the so called Franceschini Act (Law no. 220/2016) and later implemented, among others, by the Legislative Decree no. 204/2017.


Such decree, as well as the relevant implementing acts which followed, provided for a progressive increase in the content and investment quotas that all TV broadcasters and on-demand service providers are required to apply to European and Italian works.More recently, significant modifications to the above mentioned quotas have been introduced by Law Decree no. 59/2019 (the so-called ‘Culture Decree’, then converted into Law no. 81/2019) as a result of the debate between the associations of audio-visual and cinematographic producers, the national broadcasters and the most important on-demand media service providers.


Also important judicial stances came into play, most notably regarding the legal regime applicable to Internet service providers.


Like in other jurisdictions, in Italy it is hugely debated whether the provisions resulting from the implementation of the E-Commerce Directive (which were transposed through Legislative Decree no. 70/2003) still capture the nature of Internet intermediaries.


The same measures established by the AVMS Directive, as amended, and the Copyright Directive, although without affecting the provisions enshrined in the E-Commerce Directive, do nevertheless reflect a renewed understanding of the role of these platforms, which appear to be more and more content-sensitive and are therefore subject to additional obligations.


This is also confirmed by the Court of Justice’s recent judgment in C-18/18, regarding the proper construction of the absence of a general obligation to monitor, which is not affected, in the view of the Court, when an ISP is ordered to prevent the uploading of content identical or equivalent to information already declared to be illegal (provided that the assessment on the equivalent nature of the content at hand does not result in a separate and autonomous evaluation which would instead imply the exercise of an editorial discretion by the ISP).


With respect to the interpretation of the liability exemptions provided for in Legislative Decree no. 70/2003 (and in the E-Commerce Directive), the Italian Supreme Court marked a point of no return, delivering a landmark judgment on 19 March 2019 in the RTI v. Yahoo! Case.


The decision of the highest court in the Italian judiciary has reacted to important divergences which occurred in the interpretation to said provisions given by courts of various districts. On one side, the Court of Rome denied the “safe harbor” protection for all hosting providers that benefit financially from the uploading of content, even if uploaded by a third party.


On the other hand,the Court of Turin and the Milan Court of appeals focused their attention on the specific activity of the hosting provider which would become “active” only if it performs any operation on the hosted content, insomuch as it cannot be later deemed unaware of it.


By its decision, the Supreme Court recognised a distinction between active hosting providers, which are subject to the ordinary rules of civil liability, and passive hosting providers, which can benefit from the “safe harbor” defense.


It is also in light of the new Copyright Directive, which seems to attach some consideration to the concrete attitude of ISP vis-à-vis third-party content, that the Supreme Court endorsed an already theorized (but never codified by the law) distinction between active and passive hosting providers.


According to the Court, an active hosting provider is the provider of information society services that carries out an activity beyond a mere technical, automatic and passive service. Indeed, it carries out an active conduct, thus it cooperates with others in the commission of the illegal activity.


As such, active hosting providers cannot benefit from the safe harbors enshrined in Article 16 of the Legislative Decree no. 70/2003; accordingly, their liability shall be ascertained on the basis of the general tort rules provided for by the Civil Code.


To this end, the Court pointed out that some factors suggest that the hosting provider plays an active role. These features include, for instance: (i) filtering, (ii) selection, (iii) indexing, (iv) organization, (v) cataloging, (vi) aggregation, (vii) evaluation, (viii) use, (ix) modification, (x) extraction, or (xi) promotion of content, if made in the context of a business-oriented management of the service. Similarly, even profiling users with the aim to increase their loyalty is an indication that a hosting provider carries out an “active” role.


The same ruling offers a little more guidance on the interpretation of the factors capable of switching the role of a hosting provider from a passive to an active one.  The Court conclude that even technologically advanced functions are incapable per se to prove an “active” role of a hosting provider, because the second key requirement is the manipulation of user-generated data hosted by the provider.


The intersection between these judicial stances and the regulatory and legislative measures which will come into play as part of the implementation of the Copyright Directive and the amended AVMS Directive will likely trigger further discussion on the role of digital platforms.


Even if digital platforms are at the crossroad of the most important developments occurred so far in media law, some news may come up also in other specific areas, such as that of competition and media pluralism.

In fact, in December 2019, CJEU Advocate General Campos Sánchez-Bordona delivered his opinion in Case 719/18 (Vivendi SA v. Autorità per le GaranzienelleComunicazioni, with the intervention of Mediaset S.p.A.), regarding the compatibility of Italian legislation with freedom of establishment.


By the reference for preliminary ruling the Regional Administrative Court of Lazio region had requested to assess whether EU law prevents Member State to adopt national provisions like the Italian ones which prohibit a company from receiving, directly or indirectly, through controlled or affiliated companies, revenues amounting to more than 20 per cent of the revenues of the Integrated Communications Systems (Sistema IntegratodelleComunicazioni, SIC) for the sake of media pluralism.In the view of the AG, even if the restrictions placed by the Italian legislation pursue an overriding reason in the public interest (namely the protection of pluralism), such measures must in any case be proportionate.


According to the AG the Italian legislation defines too restrictively the electronic communications sector, excluding markets which have become new means for accessing media, such as retail mobile telephone services, Internet-related electronic communications services and satellite broadcasting services. Also, the 10 per cent threshold of revenues in the SIC for companies accounting revenues in the electronic communications sector for more than 40 per cent of the overall revenues might not be proportionate to the aim pursued.


Finally, calculating the revenues of affiliated companies as if they were controlled ones could be a disproportionate measure, to the extent that, depending on the distribution of voting rights, a company might not necessarily exert a considerable influence on the other one. It goes without saying that, if accepting the solution offered by the AG, the decision of the Court of Justice, which may come in 2020, would most likely lead to significant consequences.

ITALY

Main 2019 Developments in the Media Environment in connection with audiovisual media services and internet service providers


Written by Ernesto Apa & Donata Cordone  

Portolano Cavallo Studio Legale

2019 marked significant developments in media

law in Italy, as a consequence of both some achievements in domestic case law and the Digital Single Market strategy at the European Union level. The legal status of digital platforms is at the heart of the convergence of these trends. As it is well known, the role of video-sharing service providers will be significantly reshaped by virtue of the REFIT of the Audiovisual Media Service Directive (Directive 2010/13) and the approval of the Copyright Directive (Directive 2019/790).

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Donata Cordone

Ernesto Apa

Donata Cordone assists Italian and foreign clients both in court proceedings and extrajudicial settings, in particular in matters of e-Commerce, Internet and new technologies, exploitation of digital content, consumer protection, advertising, unfair commercial practices, prize contests, copyright, cinema and audiovisual, brands, domain names, unfair competition. Donata was awarded her Law Degree by the Luigi Bocconi University in 2005, defending her dissertation on Intellectual Property titled “The Italian Translation of Creative Commons Licenses”. In 2007, she earned her Master’s Degree in Jurisprudence from the Luigi Bocconi University, defending her dissertation on Antitrust laws titled “The Proposed Reform of Article 82 of the ECC Treaty: Discount Practices”, which received the score of 110/110 cum laude. Donata is a member of the Global Advertising Lawyers Alliance (GALA).

Biographies

Ernesto Apa is a Digital, Media and Telecommunications lawyer and Adjunct Professor of Digital Media and Regulation at the Bocconi University. He is ranked by Legal500 as a Leading Individual and by Chambers Europe in Band 1. He is also recommended by by Who’s Who Legal as Global Elite Thought Leader, Media Law International, the Italian legal magazine Top Legal and Expert Guides’ Guide to the World's Leading Technology, Media & Telecommunications Lawyers. He is a member of the Permanent Committee on Copyright, appointed to a four-year term (2019-2023) as independent expert by the Minister of Culture. His focus is advising clients on regulatory and contractual aspects within the digital/media and telecommunication sector, such as exploitation of digital content, TV, internet, advertising and unfair commercial practices, copyright, user generated content, ISP liability, electronic communications, etc.  Lastly, he has extensive experience on the regulatory aspects of M&A transactions in the media/technology sector, having worked as regulatory counsel on many such deals over the years.


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