Italy: Video-Sharing Sites to Be Viewed by the Italian Law as Television Broadcasters

The Italian Communications Authority (AGCOM) ruled recently (regulation no. 606/10 and no. 607/10) that in the eyes of the law video-sharing sites might be considered television broadcasters. This means that the sites could be liable under  privacy laws and obligated to follow the same programming rules and pay the same tax rates as traditional broadcasters. Therefore, some streaming and on-demand video sites will require a government license to operate and be subject to similar editorial controls as traditional TV.

Under the two AGCOM rulings, video-sharing sites that meet certain criteria might be classified as television broadcasters and as such be subject to broadcast regulations.

Government licenses will be required to operate some of the video streaming and on-demand video sites. The sites must also issue a correction within 48 hours of receiving a complaint about defamatory material and respect a protected period of the day when material unsuitable for children may not be shown.

An AGCOM official indicated that only if websites providing audiovisual media services both select and organize their content would they fall under the broadcasting rules and that this would not be established a priori, but only after an investigation. He was quoted as stating that such websites "operating in the European Union must be domiciled in an E.U. country, and their domicile is determined by the location of their registered office, the nation where editorial decisions were made, or the nation where the largest number of a company's employees were located".

The AGCOM press officer stated that, in part, the recent ITA decision was based on a 2009 case in which several top Google officials were held liable for abuse of privacy and criminal slander in connection with a short video viewable on Google Videos depicting the bullying of a Down's syndrome child by three classmates.

On April 2010, the Milan Court stated that "the company was motivated by profit when it took months to remove" the 2006 video. The Court handed down suspended six-month sentences to the executives involved, but did not fine Google or require the company to take any kind of action. The verdict has been appealed.

In order to ease the application of the new provisions, which are applicable to all companies falling under Italian jurisdiction, Agcom provides a set of F.A.Q.

The following services are excluded:

-      any form of private correspondence, such as e-mails sent to a limited number of recipients,

-      all services whose principal purpose is not the provision of programmes, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose,

-      all activities which are primarily non-economic and which are not in competition with television broadcasting,

-      services based on the upload of audiovisual content generated by private users, as long as there is no editorial responsibility by the media service provider on the selection of the content, but only aggregation activity of content uploaded by private users for the purposes of sharing and exchange within communities of interest;

-      linear services with a schedule of less than 24 weekly hours and services not intended for the wide public, such as company TV services, and cable tv services in restricted areas, such as railway stations, airports etc;

-      on-demand catalogues composed only of programmes already offered on a linear basis, such as catch-up TV or archive services, and catalogues that are not autonomously accessible by the general public, such as those inserted inside a catalogue accessible only from a bouquet offered by a different provider;

-      online and electronic versions of newspapers and magazines, websites that contain audiovisual elements only in an ancillary manner, such as animated graphical elements, short advertising spots or information related to a product or non-audiovisual service, games of chance involving a stake representing a sum of money, including lotteries, betting and other forms of gambling services, as well as on-line games and search engines, but not broadcasts devoted to gambling or games of chance.