Italy applies broadcast media law to YouTube

Video sharing sites such as YouTube could be subject to the same regulations as traditional broadcast television, according to controversial rulings by the Italian Communications Authority (AGCOM) published at the end of last year.


Video sharing sites such as YouTube could be subject to the same regulations as traditional broadcast television, according to controversial rulings by the Italian Communications Authority (AGCOM) published at the end of last year.

Two rulings, published by the Communications Authority on December 28, state that some streaming and on-demand video sites will require a government license to operate and be subject to similar editorial controls as traditional TV.

Sites such as YouTube, Daily Motion and Vimeo will be subject to broadcast regulations if they generate annual revenue of more than €100,00 (£85,000), exercise editorial control over their content and make available more than 24 hours of audiovisual material per week, the rulings state.

Among the obligations they will face is a requirement to issue a correction within 48 hours of receiving a complaint about defamatory material and respect for a protected period of the day when material unsuitable for children may not be shown.

Stefano Mannoni, one of the Communications Authority commissioners, said even the limited editorial control exercised by YouTube gave it the same status as a traditional broadcaster. "YouTube creates a hierarchy of its content, even if only through its algorithm and automatically, and that amounts to the exercise of editorial control," Mannoni told the Rome daily La Repubblica.

Some of the details of the Authority's rulings remain unclear, however. It is not clear, for example, how video websites with permanently available content and operating from abroad will be able to fall into line with the requirement to respect children's television viewing times.

Published reports suggested YouTube, which is based in Ireland, and DailyMotion, a website controlled by Telecom Italia and based in France, will in any case be subject to the regulations in their country of origin, rather than the new Italian rules.

A spokeswoman for Google, YouTube's parent company, said company officers were studying the implications of the new rules and were not ready to comment. A Telecom Italia spokeswoman said her company was in the same position.

An AGCOM official, who asked not to be named, said websites offering audiovisual media services would only fall under the broadcasting rules if they both selected and organised their content. "This will be evaluated after an investigation and cannot be established a priori," the official said in an email interview.

Audiovisual media websites operating in the European Union must be domiciled in an EU country, and their domicile is determined by the location of their registered office, the nation where editorial decisions were taken or the nation where the largest number of a company's employees were located, the official said.

The website youreporter criticised the new rules as an indication that the body responsible for protecting rights and freedoms in the communications sphere was intervening to destroy them.

"A ruling by the Communications Authority can never cancel European Union directives and national laws. And above all it can't transform the spontaneous initiatives of Internet users into a publishing enterprise," the citizen journalism website said in a statement.

Commentators said the new rules went beyond even the much criticised measures contained in the communications bill presented to parliament last year by Deputy Economic Development Minister Paolo Romani.

Guido Scorza, a media law expert, said one effect of the new rules would be strengthen the hand of Mediaset in its legal battle over alleged copyright infringements by YouTube. Last year Mediaset, a TV broadcasting company owned by Prime Minister Silvio Berlusconi, filed a €500 million lawsuit against YouTube for unlawful use of its audio and video files.

The Communications Authority ruling strengthened the idea that YouTube had editorial responsibility for its user generated content, Scorza said. "After this ruling, it will be difficult for a judge to establish the contrary," he told La Repubblica.

"The copyright owners and broadcasters of yesterday are certainly well pleased with the choice made by AGCOM," Scorza wrote in his blog.

The AGCOM official denied the rulings had any bearing on the Mediaset copyright lawsuit. Copyright was currently the subject of a separate, recently launched inquiry by the Communications Authority, he said.

Scorza's comments echo a critical analysis of the Romani law written by US Ambassador to Rome David Thorne in a confidential memo to the State Department that was recently published by WikiLeaks.

The ambassador cited critics of the law, who saw it as an attempt "to control political discourse on the Internet" and to limit the video and TV available on the Internet "as Mediaset moves into the Internet Protocol Television (IPTV) market".

The confidential diplomatic cable said the Communications Authority would be able to block traffic into Italy of sites, including YouTube, whose content did not meet the requirements of the law. "Though AGCOM is theoretically an independent agency, many fear that it may not be strong enough to resist political pressure," Thorne wrote.

The Romani law gave Mediaset many commercial advantages, rendering suspect Italian government claims that it was aimed only at protecting copyright, the ambassador said in his frank memo. "It would, however, provide a basis for legal actions against media operators that proved to be commercial or political competition for government figures."

Thorne said officers from Sky, the satellite broadcaster owned by Rupert Murdoch, had alleged to him that "Romani has been leading efforts within the GOI (Government of Italy) to help Berlusconi's Mediaset and to put Sky at a disadvantage."

In addition, the ambassador warned, "this bill would set precedents that nations such as China could copy or cite as justification for their own crackdowns on free speech."

With a communications law slanted in Mediaset's favor and the agency responsible for interpreting it subject to strong political influence, many Italians are putting their faith in European Union directives for the preservation of fair commercial competition and the editorial freedom of the Internet.

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