The legal and regulatory implications stemming from the COVID-19 pandemic are varied and cover all fields of the law, from M&A transactions to Contract Law, Court Proceedings, Intellectual Property, and Privacy and Labor Law.
The media industry is not exempt from this discussion.
Indeed, in the realm of the emergency legislation, the Italian Government and the Italian Communications Authority (“AGCOM”) have introduced specific measures aimed at supporting the media industry, safeguarding the principles of complete, objective, and impartial information as enshrined in Art. 21 of the Italian Constitution, and holding providers of electronic communication services to high standards.
The aim of this article is, therefore, to provide an overview of the abovementioned measures.
The Measures Adopted by the Italian Government
On March 17, 2020, the Italian Government adopted Law Decree No. 18 of 17 March, 2020 containing measures to strengthen the national health service and to support families, workers, and companies financially in relation to the COVID-19 emergency (the “Cura Italia Decree”). Certain provisions contained therein expressly regulate specific aspects surrounding the media industry.
Art. 89 of the Cura Italia Decree established two funds, for a total value of EUR 130 million, to support the entertainment, cinematographic, and audiovisual sectors in light of the negative consequences deriving from the restrictive measures adopted to counteract the COVID-19 pandemic. Indeed, as of March 8, 2020, the Italian Government suspended cinematographic and theatrical events nationally (Art. 2 of DPCM of March 8, 2020). The criteria for allocation of those resources among “operators, including artists, authors and performers” will be determined by Decree of the Minister of Cultural Heritage and Activities and Tourism, to be adopted within 30 days from the entry into force of the law converting the Cura Italia Decree.
In addition, Art. 88 of the Cura Italia Decree prescribed that starting March 8, 2020, the performance of agreements for the purchase of tickets to shows of any nature, including cinematographic and theatrical shows, became impossible due to force majeure. Therefore, sellers are required to reimburse buyers by means of vouchers with values equal to those of the purchased tickets; buyers are not entitled to have their money refunded. To this end, within thirty days from the date of entry into force of the Cura Italia Decree, buyers shall submit specific reimbursement requests to sellers. Within thirty days of presentation of the abovementioned requests, sellers must issue the vouchers. The vouchers must be used within one year of issue.
Furthermore, Art. 61, para. 2, let. b) extended the suspension of payment of withholding taxes, social security and welfare contributions, and premiums for compulsory insurance for entities managing movie theaters until April 30, 2020. In addition, extraordinary indemnities are provided for workers in the entertainment sector and are also extended to workers without social security benefits. There is also a redundancy fund for small companies.
The sharp decrease in advertising investments witnessed as a consequence of the COVID-19 pandemic could seriously affect numerous publishers and media companies. For this reason, Art. 98 established an extraordinary regime to access tax credit for advertising investments made by advertisers in newspapers, magazines, local radio stations, and local television broadcasters. Specifically, Art. 98 provides a tax credit on 30% of the total value of investments made.
Art. 103 has suspended all terms relating to administrative proceedings pending as of March 23 until April 15, 2020. The scope of application of the provision covers all administrative proceedings, whether initiated by a party or ex officio.
Art. 82 of the Cura Italia Decree provides that until June 30, 2020, companies engaged in the provision of electronic communications networks and services shall take appropriate measures to upgrade their infrastructures and ensure that they function properly, as well as ensure that the services they offer remain operable on an ongoing basis. Furthermore, companies providing publicly available electronic communication services shall take all necessary steps to enhance and ensure uninterrupted access to emergency services.
Art. 117 of the Cura Italia Decree further extended the term of the members of the AGCOM Council until 60 days after the COVID-19 public health emergency has ceased. The current AGCOM members were due to end their term on July 24, 2019; however, this term was progressively extended by a series of legislative decrees and, ultimately, by the Cura Italia Decree. The current AGCOM Concil will be able to carry out only activities within its ordinary course of business and the term will close once new members are elected by the Italian Parliament. Said election can occur at any time, including before the end of the extended term.
The Measures Adopted by AGCOM
Resolution No. 129/20/CONS (the “Resolution”) adopted on March 18, 2020 lays out the need to comply with applicable principles safeguarding the correctness of information on the COVID-19 topic.
Pursuant to Art. 1, para. 1, audiovisual and radio service providers are invited to ensure an adequate and complete informational coverage of the COVID-19 topic by undertaking any effort to guarantee the testimony of authoritative scientific and medical experts in order to provide citizens with verified and accredited information.
Considering that a vast array of content is provided on video-sharing platforms, as well as on social media, but does not fall within the editorial responsibility of the providers, pursuant to Art. 1, para. 2, the latter adopt any appropriate measure to contrast the dissemination of incorrect – or otherwise disseminated by non-scientifically accredited sources – information on COVID-19. These measures must include effective mechanisms to detect and report unlawful activities and their perpetrators.
Only one day after the adoption of the Resolution, on March 19, AGCOM published a press release in which it announced that it had initiated an administrative proceeding against two TV channels for hosting Adriano Panzironi’s program Il Cerca Salute – LIFE 120. The AGCOM proceeding is aimed at ascertaining whether Mr. Panzironi disseminated misleading and scientifically non-accredited information. In the press release, AGCOM stressed that at the end of the proceeding AGCOM may suspend the broadcaster’s activity for up to six months and, in the most serious scenario, may even revoke its license.
Further details on the Panzironi case were provided by AGCOM in a letter addressed to video-sharing and social media platforms published on its website a few days after the March 19 press release.
On March 21, 2020, AGCOM published a letter on its website titled “Safeguarding public health pursuant to Art. 32 of the Constitution – Implementation of measures aimed at contrasting fake or incorrect news relating to the COVID-19 health emergency; Resolution No. 129/20/CONS of 18 March 2020” (the “Letter”). AGCOM explains that the Letter was issued because it felt the need to address video-sharing and social media platforms by underlying the importance of disseminating correct and scientifically based information on COVID-19 via these means of communication.
The Letter expressly recalls the Panzironi case.
In light of the peculiar role played by video-sharing and social media platforms in this context, AGCOM asked to be informed by the platforms on which initiatives they have adopted or intend to adopt to contrast medical disinformation pertaining to COVID-19.
In light of Art. 82 of the Cura Italia Decree, on March 20, 2020, AGCOM adopted an Act directed at all telco operators containing the first measures they shall adopt during the COVID-19 pandemic. These measures include: i) identifying technical solutions to immediately increase average bandwidth per customer, over a fixed network, by at least 30%; where this is not technically possible, operators shall provide AGCOM with all elements useful for the relevant assessment; ii) recommending to end consumers, through the usual communication channels, that they preferably use fixed access (including wi-fi) to avoid overloading mobile networks; iii) proposing to AGCOM any reasonable and temporary traffic management measures, then to be verified by the Authority, aimed at avoiding congestion and saturation of fixed and mobile networks, in line with current regulations and the initiatives taken in the Berec realm.
To counteract the situation described above, AGCOM has also decided to institute four technical roundtables in the following areas: i) telco and consumers; ii) postal services; iii) media services; iv) digital platforms and big data.
Each roundtable has a specific email address to be used by operators and entitled entities to express their interest in participating and for the transmission of documents, proposals, and reports.
The activity of the telco and consumers roundtable will focus on implementing initiatives provided under Art. 82 of the Cura Italia Decree and analyzing proposals sent by operators and other entities involved in the TLC chain.
The activity of the media services roundtable will focus on monitoring operators’ compliance with Resolution No. 129/20/CONS. These activities will be coordinated in an effort to ensure that citizens are provided verified and scientifically based information relating to the COVID-19 pandemic.
The activity of the digital platforms and big data roundtable will focus on implementing initiatives aimed at combating online disinformation relating to the COVID-19 pandemic. Interestingly, the roundtable also aims to serve as a point of connection between online platforms, stakeholders, and other Italian institutions regarding the use of big data for identification of possible measures to combat contagion.
Lastly, it should be noted that through Resolution No. 111/20/CONS, AGCOM has extended the term for the payment of the annual contribution for operators with a turnover equal to or lower than EUR 50 Mln to June 15, 2020.