(Jan. 13, 2011) The Italian Communications Authority (ITA) ruled on December 28, 2010, that in the eyes of the law video-sharing sites such as YouTube (a subsidiary of Google Inc.) should be considered television broadcasters. This means that “the sites could be liable under slander and privacy laws and obligated to follow the same programming rules and pay the same tax rates as traditional broadcasters.” (Italy Regulator: Video Sharing Sites Akin to Broadcasters, PRIVACY LAW WATCH (Jan. 11, 2011), Bureau of National Affairs online subscription database, http://news.bna.com/pwdm/PWDMWB/split_display.adp?fedfid=18941369&vn
According to an ITA press officer, the video sites are viewed “as exercising editorial control over their content based on algorithms used to select and highlight popular videos.” (Id.) Under the two ITA rulings issued on December 28, video-sharing sites that meet certain criteria would be classified as television broadcasters and as such be subject to broadcast regulations. These criteria include, in addition to the exercise of editorial control, annual revenue of at least €100,000 (about US$134,000) per year and over 24 hours of video content available per week. (Id.; Philip Willan, Italy's Video Sharing Sites Subject to Broadcast TV Rules, COMPUTER WORLD (Jan. 4, 2011), http://news.idg.no/cw/art.cfm?id=52DAD36F-1A64-6A71-CEF3C2A212E62B9F.) 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.” (Willan, supra.) Certain aspects of the rulings, however, are described as being unclear; for example, how video websites that have permanently available content and operate from abroad will be able to comply with the requirement on respecting viewing times suitable for children.
An ITA 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.” (Id.) Critical of the new rules, the website YouReporter emphasized, however, that an ITA ruling “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.” (Id.)
The ITA 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. (Italy Regulator: Video Sharing Sites Akin to Broadcasters, supra.) The Milan judge stated, in explaining his verdict in an 111-page document issued on April 12, 2010, that “the company was motivated by profit when it took months to remove” the 2006 video. (Eric J. Lyman, Profit Motivated Google, Italian Judge Says in Court Reasoning of Executives' Convictions, PRIVACY LAW WATCH (Apr. 14, 2010), http://news.bna.com/pwdm/PWDMWB/split_display.adp?fe
dfid=16980242&vname=prabulallissues&fn=16980242&jd=a0c2u0b0h8&split=0.) The judge 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. (Id.; Italy Regulator: Video Sharing Sites Akin to Broadcasters, supra.)
The new rules are said to go beyond “the much criticized” provisions of the communications bill tabled in the Italian Parliament in 2010. According to media law expert Guido Scorza, the rulings will strengthen the hand of the television broadcasting company Mediaset, owned by Italian Prime Minister Silvio Berlusconi, in its €500 million (about US$646 million) lawsuit against YouTube for alleged copyright infringements by YouTube. (Willan, supra.)