Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

The European Court of Justice has recently been called on to rule on the use of the Internet and more specifically, of so called free wifi networks (namely wifi networks not protected by passwords), which are often used by Internet users who violate copyright rights, in taking advantage of the anonymity guaranteed by the net.

With its decision of the 15th September 2016 regarding lawsuit C-484/14, the Court of Justice ruled in favour of the acquittal of the administrator of a local wireless network, which was free and accessible without authorization, and which had been used by a user for the online distribution of a piece of music without the consent of the copyright holders.

Acknowledging Internet access services to be a service in the information society, which simply consist in the provision of access to a communication network, the Luxembourg Court adjudged the wifi network administrator to be exempt from all liability in accordance with Directive 2000/31/EC. As in the case of hosting service providers, the latter is in fact under no obligation (nor does he have the concrete means) to have any knowledge of and monitor information transmitted by his network.

However, keeping the necessary balance between fundamental rights (in the present case, the freedom to do business and copyright), the Court further stated that national judicial authorities may require service providers to put a stop to copyright violations or to prevent them, provided that the technical measures necessary to achieve this do not excessively restrict the provider’s freedom to do business.

According to the Court of Justice, protecting wifi networks with a password represents a technical measure which “in no way prejudices the essential content of the rights” of access service providers and at the same time, is appropriate for protecting copyright “insofar as network users are obliged to reveal their identity and cannot therefore act anonymously”.

 

 

The Italian Government has signed an agreement with the Chinese e-commerce giant in order to promote the excellence of Italian agricultural products and to fight against the phenomenon of counterfeit produce.

The agreement will enable Italian producers to satisfy the increasing demand for typical Italian products on the Chinese platform, which counts over 430 million consumers. The agreement aims at guaranteeing our Italian brands with a high level of protection against the counterfeit products market. This is also an important result in light of the fact that for decades the WTO has been searching for an adequate form of protection, which in this case has been achieved with a private company in the space of just a few months.

Since last year it has no longer been possible to find counterfeit Italian agricultural produce and foodstuffs on the Chinese website, which has prevented the monthly sale of 99 thousand tonnes of counterfeit Parmesan cheese, 10 times more than the production of the authentic cheese itself, and the sale of 13 million bottles of Prosecco which did not originate from the Veneto Region (in Italy). Italy is currently the only country on Alibaba, which has granted the same level of anti-counterfeit protection to DOP and IGP products as that provided for commercial brands. A level of protection which under this agreement is extended from the b2b platform, accessible solely to companies, to the b2c platform, consequently assuring that those 430 million Alibaba website users will be able to purchase genuine “Made in Italy” products.

The Ministry of Agriculture has set up an operational task force at the Anti-Fraud Inspectorate with the aim of identifying and reporting counterfeit products on a daily basis. The ads are removed within 3 days and the vendors are informed that they are violating Italian geographical indications and designations of origin.

We should point out that Italy has also invested in the promotion of Italian wine and food on the Chinese e-commerce platform. With this agreement Alibaba has undertaken to instruct both vendors and consumers on the importance of geographical indications and designations of origin in the food industry.

 

 

Hosting providers are not to be held liable for any offences committed by their users nor are they required to remove contents at the request of subjects who claim to be injured parties. The Court of Grosseto relieves Tripadvisor from all responsibility for negative reviews by members of its community.

In judgment no. 46 of 2016, the Court of Grosseto established that providers of services such as Tripadvisor are to be considered as hosting providers and for this reason are not to be held liable for offences committed by their users.

The case was brought by a hotel in the Argentario area, which pressed charges against the travel portal in 2013 for publishing a negative review that the hotelier considered to be false and defamatory. In the opinion of the plaintiff, Tripadvisor was jointly liable for defamation, as it did not prevent the publication of the review, remove the review promptly enough following its being notified and also as it failed to agree to communicate details of the reviewer.

By rejecting the hotelier’s application, the Court of Grosseto established that the platform acted in compliance with Italian legislation. According to the judge what is important when defining a hosting service is the role played in relation to published contents: in the case in question the portal does not interfere with the contents of reviews and therefore cannot be considered liable.

With regard to the plaintiff’s grounds, the Court clarified that Tripadvisor simply qualifies as a hosting provider, despite having implemented automated filters to prevent the publication of explicitly inappropriate or fake reviews, as provided for by its privacy policy. Furthermore, the judge specified that platforms which publish user generated contents (Ugc) or contents provided by users, may at their discretion remove such contents, but are under no obligation to do so at the request of subjects who consider themselves injured parties, as the judiciary is the only competent authority to ascertain the possible defamatory nature of contents.

 

 

On the 2nd of May 2016 a draft law was submitted to the Chamber of Deputies of the Italian Parliament, which aims at “regulating digital platforms for the sharing of goods and services”, and at “promoting an economy based on mutual sharing”. The purpose is to regulate the so-called sharing economy through an across-the-board approach to different professional areas.

Italy would be the first country to regulate this booming economic sector, which includes such by now notorious services as Uber (now prohibited in Italy) and AirBnB.

The draft text is the result of eighteen months’ work carried out by the Parliamentary Intergroup for Technological Innovation. Article 1 lays down the law’s objectives, while Article 2 clarifies the definition of “sharing economy”, establishing that services for which providers determine a fixed charge are not to be included. Article 3 calls for sharing platforms to register with a national electronic register kept by the Italian Antitrust Authority. With the creation of an electronic register, platforms will have to obtain the approval of the Authority, whose task it will be to evaluate inconsistencies and possible infringements (or acts of unfair competition against the traditional sectors).

However, it is principally the fiscal aspect, which the draft law aims to regulate. The new regulation provides for 10% taxation on the revenue generated by platforms, up to a maximum of 10,000€ per year, which can also comprise sums for different services. The obligation for payment of the taxes would lie with the platforms themselves, which would be required to withhold the amounts due from the takings of registered customers, thus acting as withholding agents. On exceeding the threshold of 10,000€, the income made by platforms will be considered as actual earnings, to be added to those already made. New rules have also been provided for payments, which must henceforth only be carried out by digital means.

The signatories of the draft law expect this operation to raise tax revenue from 150 million € to 3 billion € by 2025.

The draft law has started its approval procedure at the Joint Parliamentary Commissions of Transport and Productive Activities.

posted by admin on giugno 1, 2015

Consumer rights

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An information handbook has been published on marketing and the consumer’s right to privacy.

The Italian Data Protection Authority has published: “UP WITH ADVICE, DOWN WITH SPAM. From phone to supermarket: privacy proof marketing”, a handbook on defence strategies to adopt against intrusive advertising, designed to inform the consumer and to urge companies to develop marketing strategies which respect user rights. Its contents describe the actions citizens can take to prevent their purchases from being spied on or to stop unwanted telephone marketing calls and SMSs. In addition there is an analysis of the problems relating to the techniques of persuasion used for phones, emails and social networks, and those relating to the operation of the Register of Objections. With regard to this the President of the Authority, Antonello Soro, hopes for “a rapid legislative review of the Register of Objections which would make consumer protection more incisive”.

In addition, the handbook sets out the rules necessary for conducting marketing activity that does not violate the rules of privacy and establishes a relationship of trust and listening to consumer needs. The Authority reminds that “respect for consumers and proper use of their personal data – from those needed to contact them to more sensitive information such as tastes and preferences –mark out companies who see their customers merely as “prey”, from those who choose to operate transparently, placing the emphasis of their business on both the quality of their products and services and the trust of their customers”.

 

 

 

posted by admin on maggio 1, 2015

Consumer rights

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On 21st April 2015, the IAP Governing Council unanimously agreed to appoint Professor Giusella Finocchiaro as a member of the Jury of the Institute for Advertising Self-Regulation for the two-year period 2015-2016.

The aim of the Institute for Advertising Self-Regulation is to provide a safeguard for honest, truthful and fair commercial communication. Through a binding agreement, the Institute requires members to include in their contracts a special clause of acceptance of the norms of the IAP Code and of self-disciplinary decisions. The code is addressed to companies that invest in communication, as well as agencies, consultants, media distributors and dealerships  and involves a broad spectrum of the Italian sector of commercial communications.

The members of the Jury and the IAP Monitoring Committee are chosen from experts in a position to evaluate with absolute independence and impartiality in accordance with the special Code, in order to guarantee the impartiality of self-regulatory judgment.

The task of the Institute is to analyze reports of advertisement not considered to be compliant with the norms of the Code, determine bans on unfair advertising, provide operators with prior advice concerning advertising that that has not yet become public and to protect the creativity of future advertising campaigns.

In the field of commercial communication the IAP is an influential interlocutor of the Italian Antitrust Authority and its importance is recognized both at national and European level.

 

 

The purchase of a computer entails no obligation (on the part of the purchaser) to accept the preinstalled operating system. This was established by the Italian Supreme Court in a recent judgment when rejecting an appeal by the multinational I.T. corporation Hewlett Packard Italiana.

In confirming both the judgment at first instance and in appeal, the Supreme Court states with decision no. 19161/2014 that “should whoever buys a computer on which a particular operating system has been pre-installed by the manufacturer not accept the terms of the user license displayed when the computer is powered on for the first time, then they have the right to keep the computer and to only return the software related to the non accepted license and to be refunded for the part of the price which specifically regards the license”.

The case had been brought before the Court of Florence by the consumer association ADUC on behalf of a purchaser of a Compaq laptop supplied by HP, who had been refused a refund of the cost of the Windows operating system.

ADUC explained that the complaint originated from clauses in the Windows user license, which state: “should the end user not accept the terms of this agreement, they may not use or duplicate the software and should promptly contact the manufacturer for instructions on the procedure for returning the product or products and on the conditions pertaining to refunds in accordance with the provisions stipulated by the very same manufacturer.”

On confirming the 140 euro refund requested by the Florence user from HP, the Supreme Court described selling the software and the hardware as “a commercial strategy aimed at forced distribution”, “with a domino effect as concerns imposing on the market additional software applications, the distribution of which to end customers would encounter great encouragement and conditioning – if not genuine need – in a more or less acute obligation of compatibility and interoperability (…) with that operating system, which is at least fundamentally monopolistic.”

 

posted by admin on marzo 9, 2012

Consumer rights, Media

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Following the recent outburst of protest on the Internet against the payment of TV license fees for company computers, RAI, Italy’s National Public Service Broadcaster has clarified that the request for payment did not refer to to the mere ownership of a personal computer connected to the Internet, nor to the ownership of tablets and smartphones.

According to reports, demands for payment sent out by the RAI Licence Fee Department only refer to the special license fee due in cases in which computers are used as televisions (digital signage), it being understood that the special fee is not to be paid in cases where companies, corporations and public bodies have already paid licence fees for the ownership of one or more televisions.

The RAI management stresses that the application of this tax in Italy is thus limited to “a much more specific use of computers than that applied for broadcasters by other European countries, which in their license fee requests have listed as equipment subject to the fee not only televisions, but all equipment which is capable of receiving or can be adapted to receive radio and television signals, such as computers connected to the Internet, tablets and smartphones.”

 

posted by admin on gennaio 29, 2012

Consumer rights

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The Italian Antitrust Authority has imposed a fine of €1.500.000 on the company Estesa Limited, owner of the site www.italia-programmi.net, for misleading and aggressive commercial practices.

This heavy fine is the result of the investigation by the Italian Antitrust Authority in collaboration with the Postal Police which was launched last July after the Authority had received reports from thousands of people who had fallen victim to a scam business which used the italia programmi.net website. as its platform.

This site appeared to users as the first search result on Google when looking for free software downloads and they were invited to register and provide personal information in order to download the software they were looking for. Through the registration process they were in fact subscribing, basically without their knowledge, to a two-year contract with the company Estesa Limited based in the Seychelles, for the provision of software at an annual cost of €96 to be paid in advance once a year.

According to the Antitrust Authority, the registration page did not set out the terms of the subscription in a sufficiently prominent place for them to be immediately seen and understood. Basically “the consumer was led to believe that it was a free service.”

The Authority has also identified undue psychological pressure on citizens in the practices of Estesa Limited. In fact after registration and having failed to communicate to users any confirmation whatsoever of the completion of the contracts, the company began sending them ordinary and registered mail demanding payment and threatening them with legal action and consequent considerable additional costs in the case of default. Many letters received by citizens even referred to possible legal implications under the criminal code which are non-existent in Italy.

According to the Authority’s estimate, the fraud involved more than 25 thousand consumers. Our blog also warned of the scale of the deception. The various posts that we have devoted to the investigation have in fact aroused the interest of nearly a hundred readers, who have sent us their comments pointing out that they had been victims of the unfair business practices of Estesa Limited.

From what we learn from the Authority’s press release Estesa Limited does not to date appear to have ever threatened any legal action against consumers who refuse to meet its demands for payment.

Finding that Estesa’s illegal conduct is in violation of the Consumer Code, the Authority’s decision will be released on the international circuit of the Authorities for consumer protection since it is a practice likely to be “replicated” with similar characteristics in other countries .

A copy of the Authority’s decision was also sent to the Public Prosecutor’s Office in Rome, which had already opened a file on the case in November, following reports from people who had applied directly to the office itself.

The company has as yet offered no response to the Italian Authority’s resolution.

posted by admin on gennaio 21, 2012

Consumer rights, Privacy, telemarketing

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Telemarketing is once more the focal point of the activity of the Italian Privacy Authority which has recently ruling on the phenomenon of so-called “silent calls”.

These are calls when the recipient has no communication with any other party after lifting the receiver. This phenomenon seems to be quite common to the point that many people have turned to the Italian Authority to report receiving repeated and continuous calls of this type.

It seems that the origin of this mysterious new annoyance for citizens is yet again to be found in telemarketing. Most “silent calls” would in fact appear to be the result of an organizational problem for companies that deal with commercial phone calls. Most of these companies use a system that automatically calls individual users in order to connect them with call centre staff whose job is to promote services and products. Sometimes, however, the automatic system may pass on to the call centre a number of calls which is higher than the actual number of operators available at that moment. So the user’s phone rings, but there is no-one at the other end.

Of course especially if repeated, silent calls may not only cause users annoyance but also alarm, when we also see that a number of citizens have complained to the Authority that they have received such calls up to 10-15 times in succession.

In its ruling which focuses on the case of an energy supply company identified as the party indirectly responsible for “silent calls”, the Italian Authority has determined that companies using automated call system technology will have to exercise precautions to prevent the recurrence of such calls and to eliminate the ability to call the same number repeatedly within a period of 30 days.

Should they fail to comply with the prescribed measures companies will face administrative penalties ranging from €30 thousand to €120 thousand.

 

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