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Article Italy: New Law on Protection of Youth Enters into Effect

On September 15, 2023, Decree-Law No. 123 of September 15, 2023, later converted into law through Law No. 159 of November 13, 2023, Containing Measures to Combat Youth Destitution, Educational Poverty and Crime, and [Promote] the Safety of Minors in the Digital Environment entered into effect in Italy.

Measures Concerning the Participation of Minors in Crimes

Determining Legal Representation of Minors Involved in Serious Crimes

If the potential involvement of a minor is ascertained during investigations concerning mafia-type association crimes or involving the illicit trafficking of narcotic substances or psychotropic drugs, the public prosecutor must inform the court accordingly for the court to determine whether the legal representation of the minor falls to one or both of the minor’s parents, a special guardian, or the public defender’s office. (Decree-Law No. 123, art. 7(1).)

Precautionary Custody and Reeducation of the Minor

In the case of crimes for which imprisonment not exceeding five years or a financial penalty, or both, are to be imposed, and which involve the participation of a minor, the public prosecutor is to notify the minor and their guardian or legal representative that they may seek early settlement of the criminal proceedings if the minor joins a reintegration and social reeducation program, performs socially useful work, collaborates free of charge with a nonprofit organization, or carries out other activities for the benefit of the minor’s own community for a period between one and six months. (Decree-Law No. 123, art. 8(1)(b).) If the judge considers that the program has been successful, they may dismiss the charges and declare the extinction of the crime. Otherwise, the judge must return the case to the public prosecutor for the continuation of the criminal proceedings. (Decree-Law No. 123, art. 8(5).)

Banning Minors Involved in Crimes from Accessing IT Devices

Under Decree-Law No. 123, a minor between 14 and 18 years of age to whom a verbal warning has previously been given by a court concerning illicit conduct and who is later convicted, even if provisionally, for one or more crimes against the person or property, or involving weapons or narcotic substances, may be banned by the respective court from totally or partially using specifically indicated IT and telematic platforms or services, including owning or using mobile phones, other devices for data and voice communications, or any other radio transmitting communication devices. (Decree-Law No. 123, art. 5(1)(a)(3).) A separate related preventative procedure is set forth for minors between the ages of 12 and 14. (Decree-Law No. 123, art. 5(5).)

Safety of Penal Institutions for Minors

When a minor serving a sentence for a crime reaches the age of 21, the director of the respective penitentiary institution may request the supervisory magistrate for minors to authorize the inmate’s transfer to a penal institution suitable for adults, as identified by the Department of Penitentiary Administration. This benefit is not available, however, when the convicted person (a) exhibits behavior that compromises the safety of or disturbs order in the respective penitentiary institution, (b) prevents through violence or threats the activities of other prisoners, or (c) during penitentiary life takes advantage of having reduced other prisoners to a state of subjection. (Decree-Law No. 123, art. 9(1).)

Measures Aimed at Protecting Minors

Parental Controls Installed in Electronic Communications Devices

To guarantee a safe digital environment for minors, the new law contains a variety of provisions regarding parental control of electronic communications devices used by minors under their authority. (Decree-Law No. 123, art. 13(1).) Among these measures is the provision requiring device manufacturers to ensure, when placing devices on the market, and within one year from the entry into force of Decree-Law No. 123, that the operating systems installed in such devices allow for the use of applications permitting the implementation of parental controls. (Decree-Law No. 123, art. 13(2).) Providers of electronic communications services must send a notice to their customers regarding the possibility and importance of installing or requesting the activation of such applications on their devices. (Decree-Law No. 123, art. 13(7).) Personal data collected or generated during the activation of the applications may not be used for commercial and profiling purposes. (Decree-Law No. 123, art. 13(6).) The Communications Guarantee Authority is to supervise the correct application of these provisions. (Decree-Law No. 123, art. 13(8).)

Digital and Media Literacy to Protect Minors and Information Campaigns

The law charges the Presidency of the Council of Ministers, through the Department for Family Policies, with promoting studies and developing guidelines aimed at users of electronic communications devices and parental control applications, with particular attention to educators, families, and the minors themselves. (Decree-Law No. 123, art. 14(1).)

New Crime Concerning Compulsory Schooling

The new law amends the Italian Criminal Code to hold persons criminally responsible for failing to comply with compulsory schooling obligations concerning minors under their tutelage after receiving appropriate warnings. This new crime is punishable by imprisonment for up to two years. (Decree-Law No. 123, art. 12(1).)

Designation of a Digital Services Coordinator in Implementing EU Law

To protect minors against online pornography and other illegal or prohibited online content, Decree-Law No. 123 designates the national Communications Guarantee Authority as the Coordinator of Digital Services for Italy in accordance with EU Regulation 2022/2065 on a Single Market for Digital Services. (Decree-Law No. 123, art. 15(1).)

Dante Figueroa, Law Library of Congress
January 9, 2024

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