ITALY

Expert assessments: Sanctions

The citation above describes two separate legislative instruments enforced by different bodies within Italy’s Communications Regulatory Authority (AGCOM).148 Regulations on data disclosure are included in the Maccanico Law, which established AGCOM, and requires all media outlets to register with the Registry of Communication Operators (Roc) and to provide annual information regarding corporate ownership structure so AGCOM can monitor compliance with antitrust provisions in the law.149 It is true that violators of these regulations can be fined 2 to 5 percent of their annual turnover. The rules concerning child protection are contained in the Consolidated Text on Radio-Television, which regulates broadcasters and operators of audiovisual media services.150

Hence, the statement above appears to confuse the penalties provided for violation of the norms on data disclosure with those required by norms regarding child protection. It is important to note, too, that penalties for breaches to child protection regulations can only be assessed by AGCOM on broadcasters and audiovisual media service providers, as AGCOM currently has no remit to handle content-related breaches by the print and online press.

The penalties for breaching data disclosure regulations are specified in the Maccanico Law, which states that fines from EUR 516 to EUR 100,000 can be imposed on operators that fail to disclose information requested by AGCOM.151 Fines ranging from EUR 10,000 to EUR 250,000 can be assessed for media outlets that fail to respect the orders and warnings from AGCOM. In cases of serious and repeated violations, including providing false information on corporate ownership, AGCOM can also order the suspension of a media outlet’s activity for a period not exceeding six months, or it can withdraw the operator’s authorisation to operate. In the case of violations of the antitrust regulations, media operators can be punished with an administrative sanction ranging from 2 percent to 5 percent of the company’s annual budget.

Legal norms regarding the protection of minors are established in the Consolidated Text on Radio-Television and in self-regulatory codes, with different sanctioning standards contained in different laws. One important regulation in the field of child protection is the self-regulatory Code on Television and Children.152 The main aim of the code is to protect children from manipulative advertising and from unsuitable programming. The code also provides specific norms about television programs that are dedicated to educating minors, and established a supervisory committee responsible for monitoring compliance with the code. Violations of the code can also be punished by AGCOM, which may impose of fine amounting from EUR 25,000 to EUR 350,000, and in more serious cases may impose the suspension of activity for a period from three to 30 days.” 153

AGCOM frequently sanctions broadcasters for breaches to child protection regulations. In the first quarter of 2011, fines on operators for violations to child-protection regulations totalled EUR 370,000.154 In 2004, the Italian Supreme Court (Corte di Cassazione) upheld a decision by AGCOM to fine the public service broadcaster RAI for a prime time broadcast of a documentary about the crimes committed by a pedophile. In its decision, the Supreme Court established seven rules regarding broadcasting and the protection of minors: “1) Television programs that may damage children’s ability to distinguish between different or opposite values, should not be broadcast; 2) To protect children, it is not sufficient to give a notice that a transmission is not suitable for children; 3) The broadcaster that intends to transmit programs that may harm the development of children must take technical measures to exclude children from seeing the broadcast under normal circumstances; 4) Television operators must consider the child as a person who has the right to peaceful and healthy physical and mental development; 5) The principles of child protection must be applied to all television programs; 6) In cases of conflict between right to information and protection of minors, both constitutionally guaranteed values, the latter must prevail over the former; 7) Broadcasters must avoid transmitting programmes that are violent or not suitable for minors.”

With regards to the broader media sanctioning system in Italy, media are regulated 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.155 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 for violations to these professional standards.156 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 the courts.157

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, professional secrecy, prohibition of publication of acts and images, and publication of illegal wiretaps.158 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.159 Since registration is mandatory for all individuals engaged in “journalistic activity,” these regulations apply to all journalists regardless of media. In Italy, journalists are regularly prosecuted for defamation. In September 2011, three journalists were sentenced to up to a year in prison for defaming a local mayor. 160

All decisions made by AGCOM are subject to the judicial review in the Regional Administrative Courts (Tar- Tribunali amministrativi regionali). The appeal does not automatically suspend the effect of the decision, however in cases in which the enforcement of the decision may create a serious financial loss to the media outlet, the Court may suspend the execution of the decision as a precautionary measure. Decisions of the Regional Administrative Courts may also be appealed to the Supreme Administrative Court (Consiglio di Stato).

147 “Criticism 1,” 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 148 See AGCOM’s website at: http://www.AGCOM.it. 149 Maccanico Law (Act No. 249/1997),“Establishment of the Communications Regulatory Authority (AGCOM) and norms governing telecommunications and broadcasting,” available in Italian at: http://www2.agcom.it/L_naz/L_249.htm. 150 Consolidated Act on Radio and Television (Law-Decree 177/2005, amended by Legislative Decree 44/2010), unofficial English translation provided University of Luxembourg, available at: http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 151 Maccanico Law (Act No. 249/1997), Article 1 (29) – (32), available in Italian at: http://www2.agcom.it/L_naz/L_249.htm. 152 The Code on Television and Children, adopted November 29, 2002, available in Italian at: http://www.AGCOM.it/default.aspx?message=viewdocument&DocID=3100. 153 Consolidated Act on Radio and Television (Law-Decree 177/2005, amended by Legislative Decree 44/2010), Article 35, unofficial English translation provided University of Luxembourg at:http://wwwen.uni.lu/content/download/31290/371510/file/Italy_translation.pdf. 154 AGCOM, Annual Report 2011, available in Italian at: http://www.agcom.it/Default.aspx?message=viewrelazioneannuale&idRelazione=27##. 155 See Charter of Duties of Journalists, adopted by the National Federation of the Italian Press and National Council Order of Journalists in July 1993, available at: http://ethicnet.uta.fi/italy/charter_of_duties_of_journalists. 156 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. 157 Order of Journalists (Ordine dei Giornalisti) at: http://www.odg.it/content/storia, per Law 69/1963. 158 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 159 Italian Courts have in fact handed down prison sentences to 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. 160 See “Italy: Criminal Defamation Must be Repealled,” Article 19, 7 September 2011. In this case, two journalists were sentenced to a year in prison, and the third was sentenced to eight-months: http://www.article19.org/resources.php/resource/2721/en/italy:-criminal-defamation-legislation-must-be-repealed.