ITALY

Expert assessment

It is true that Italy's Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni - AGCOM) exercises regulatory competences over all media sectors: the press, electronic press, and broadcasting, but it currently does not have any specific content-related authority over print, online newspapers, blogs or private websites.71 Its regulatory supervision over print and online press extends to registration requirements only and does not include oversight over editorial content. Hence, it is inaccurate to describe AGCOM as the "watchdog" for Italy's print and online press.

AGCOM's primary remit is to monitor Italy's broadcasting and audiovisual media for compliance with competition and anti-trust rules, and to oversee the implementation of the EU Audiovisual Media Services Directive.72 In Italy, media are regulated by general provisions applicable to all journalists regardless of media sector, as well as by a number sector-specific laws and decrees detailing different content and regulatory standards for each sector. Enforcement of both "general" and sector-specific regulations are carried out by a consortium of state bodies, including AGCOM, the Ministry of Economic Development's Department of Communications, the Parliamentary Commission on Radio and Television, the Antitrust Authority, and the Privacy Authority, the Order of Journalists, and the courts.

All journalists in Italy are bound by Law 69/1963, which requires professional journalists to be licensed, and establishes a series of "rights and duties" relating to licensed journalists.73 These include requirements to protect the privacy of individuals, the protection of minors, and the protection of dignity of people with mental or physical handicaps, as well as people involved in criminal proceedings. This law also details corresponding disciplinary sanctions (such as warnings, censure, suspension from work and disbarment) which can be imposed on journalists for violations to these professional standards.74 Compliance with these provisions is generally supervised by the Order of Journalists (Ordine dei Giornalisti - ODG), a professional order under the supervision of the Ministry of Justice, and by the courts. 75

All licensed journalist are also bound by certain provisions in the criminal code and in the Italian Constitution, which contain regulations on libel and defamation, responsibilities of the director and editor, rules regarding professional secrecy, and restrictions against publishing certain acts and images, and illegal wiretaps.76 These provisions, if breached, carry a range of penalties—from fines to imprisonment. For instance, Article 595 of Italian Criminal Code punishes defamation via the press with the penalty of imprisonment ranging from six months to three years.77 Since registration is mandatory for all individuals engaged in "journalistic activity," these regulations apply to all journalists regardless of media.

Moving from general principles to sector-specific regulations, we note that media in Italy are regulated under different laws for each media sector. The print press are governed by The Press Law of 1948,78 amended many times since, which is composed of 25 articles that provide the basic rules for the sector, including provisions concerning registration requirements, ownership and management structure of publishing houses, and content regulations concerning libel, defamation and right of reply.79 There is no specific authority charged with supervising the press, but rather the sector is self-regulated, and monitored primarily by the national and regional councils of the Order of Journalists and by the courts. AGCOM's specific regulatory power over print press is defined in the Maccanico Law which lists the subjects for which Roc registration is compulsory: "[…] daily or periodical newspaper[s] and magazines publishing houses, the national press agencies, telematic and telecommunications companies, including electronic and digital publishing."80 However, registration with AGCOM does not affect the content or informational activities of individual newspapers.

Broadcasting and audiovisual media are currently regulated under the Consolidated Act on Radio and Television (2005), amended in 2010 to implement the EU Audiovisual Media Services Directive.81 The amended law encompasses all audiovisual media services, 82 which includes radio and television broadcasts as well as digital and analogue TV, live-streaming, web-casting and on-demand services.83 AGCOM is the primary regulatory and sanctioning authority for these media.

There is no a unitary regulation for online newspapers and blogs but rather a wide range of (sometimes conflicting) legislative sources related to electronic communications and audiovisual media—often leaving regulations of online press to the interpretation of national courts. Italian lawmakers have in fact made numerous attempts to regulate online press. The Press Law of 2001 (Act 62/2001),84 for instance, was aimed at regulating online newspapers by the same rules as traditional press under the Press Law of 1948.85 This sparked an intense debate about the applicability of the Press Law of 1948 to online newspapers. The debate subsided after Italian lawmakers approved the Legislative Decree No. 70/2003,86 which established that publishers of electronic newspapers were under the same obligations as traditional publishers but only in the case these publishers wished to apply for press subsidies provided by Act 62/2001. The Italian Supreme Court (Corte di Cassazione) has since ruled in a number of cases that the Press Law of 1948 is not applicable to online newspapers, blogs or other informational websites.87 In addition, the Consolidated Act of Radio-Television expressly excludes "electronic versions of newspapers or magazines" from the definition of "audiovisual media services." On the basis of the cited article, AGCOM in November 2010 issued a decision on the provision of audiovisual media services in which it definitively clarified that online newspapers, blogs and user-generated content on websites are not under its regulatory powers.88

70 This example was cited by the Hungarian Government with slightly different wording under both "Criticism 7" and "Criticism 16," in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 71 As per Consolidated Act on Radio and Television (Law-Decree 177/2005, amended by Legislative Decree 44/2010, unofficial translation in English provided by University of Luxembourg, available at: http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 72 See information on AGCOM in Italian at: http://www.agcom.it/. 73 See Charter of Duties of Journalists, adopted by the National Federation of the Italian Press and National Council Order of Journalists in July 1993, http://ethicnet.uta.fi/italy/charter_of_duties_of_journalists. 74 Law 69/1963 PM / AAVM. For instance, Article 2(1) of this law establishes freedom of expression as an "unalienable right," but also states there are a number of limitations to these rights, especially with regards to protecting the privacy of individuals. 75 Order of Journalists (Ordine dei Giornalisti) at: http://www.odg.it/content/storia, per Law 69/1963. 76 Provisions in the press, libel, criminal offenses related to the profession and the criminal trial, http://www.odg.it/category/categoria-leggi/disposizioni-sulla-stampa-diffamazione-reati-attinenti-alla-professione-e-p 77 Italian courts in fact prosecute journalists for defamation; see, for instance, "Three Journalists in Italy Handed Prison Sentences on Defamation Charges," Barbara Trionfi, 28 May 2011, International Press Institute, http://www.freemedia.at/home/singleview/article/three-journalists-in-italy-handed-prison-sentences-on-defamation-charges.html. 78 Press Law No. 47/1948, available in Italian at: http://www.mcreporter.info/normativa/l48_47.htm. 79 Article 8 of the Press Law, for instance, on defamation and right of reply, requires the director of the newspaper to ensure the right of reply to the person defamed. Article 12 of the Press Law recognizes that victims of defamation are entitled to claim compensation for the financial and moral damages suffered. Punishments for breaches to these articles are detailed in the criminal code, which as noted applies to all registered journalists. 80 Article 6(a)(5) of the Maccanico Law (Law No. 249/1997), available in Italian at, http://www2.agcom.it/L_naz/L_249.htm. 81 Consolidated Act on Radio and Television was amended in 2010 by the Decreto Romani (Decree No. 44/2010) in order to implement the EU Audiovisual Media Services. Unofficial English translation provided by the University of Luxembourg, http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 82 As per the Consolidated Act on Radio-Television, Law-Decree No. 77/2005 as amended by Decree 44/2010, an "audiovisual media service" is defined as media "under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks." This definition is in accordance with Articles 56 and 57 of the Lisbon Treaty. Unofficial English translation provided by the University of Luxembourg, available at: http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 83 Consolidated Act on Radio-Television. Law-Decree No. 77/2005, as amended in 2010 by Legislative Decree 44/2010. Unofficial English translation provided by the University of Luxembourg, available at: http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 84 Act 62/2001, "New rules on publishing and editorial products and changes to the law of 5 August 1981, no 416," available at: http://www.mcreporter.info/normativa/l01_62.htm. 85 Article 1(1) the Act 62/2001 law defines an "editorial product" as a "product made on paper, or on electronic support, intended for publication or communication of information to the public by any media outlet, including electronic ones, or through radio broadcasting or television, except for music record and film." As such, lawmakers argued online press could be regulated under the Press Law of 1948. 86 Legislative Decree No. 70/2003 implemented the EU Electronic Commerce Directive (2000/31/EC), available at: http://www.camera.it/parlam/leggi/deleghe/testi/05177dl.htm. 87 See Decisions No. 10535/2009, http://www.diritto-in-rete.com/sentenza.asp?id=802; No. 35511/2010, available at: http://www.diritto-in-rete.com/sentenza.asp?id=989 and No. 7155/2011 (not yet published). 88 Per Deliberations No. 606/10/CONS, available at: http://www.agcom.it/default.aspx?DocID=5416, and 607/10/CONS, available at: http://www.agcom.it/default.aspx?DocID=5417.