Until the second half of the 1970s in Italy, the radio and television service was entirely reserved to the State through the assignment to a state-owned company (RAI – Radiotelevisione Italiana). The RAI reform law (Law 103/1975) confirmed the reserve in favor of the State for national radio and television broadcasts and, at the same time, allowed private individuals, subject to government authorization, to carry out radio and television activities at local level. However, given the failure to introduce this authorization regime, the private broadcasters began to “occupy” the various available frequencies and, by connecting with each other, they ended up creating real national networks, eluding the State reserve in reference to national broadcasting. This situation led the government to introduce, with d.l. n. 807 of 1984, a transitional regulation that allowed private broadcasters to continue their activities, pending an organic reform law. In the meantime, RAI and the Mediaset group had assumed a dominant position, creating a duopolistic structure considered by the Constitutional Court to be detrimental to the principle of information pluralism (Constitutional Court sentence no. 826/1988). This prompted the legislator to adopt a law for the reform of the radio and television system (Law no. 223/1990), which marked the end of the reserve to the State on radio and television activities and the introduction of a mixed public and private system, while providing for an anti-concentration regulation aimed at avoiding the formation of dominant positions in the private sector. The subsequent law no. 249/1997 established the Authority for Guarantees in Communication (AGCOM), with supervisory powers over the press, TV, radio and telecommunications, and introduced further anti-concentration measures, in particular providing for the prohibition of a subject receiving television concessions to “broadcast more than 20% of the analogue television networks and of national television programmes”. The regulatory framework changed further in the early 2000s when, with the transition from analogue to digital, Law n. 112/2004 was adopted, following the proposal of the Minister of Communications of the second Berlusconi government. The law was later transposed into the Radio and Television Consolidated Text /TUSMAR (Legislative Decree No. 177/2005) and introduced a complex system of limits and prohibitions created to safeguard the Mediaset-Rai duopoly and to allow Mediaset to derogate from the anti-concentration measures introduced by the law n. 249/1997.
In the meantime, the European directive “Audiovisual media services” (2007/65 / EC), by aligning the legislation to the new technological context has, on the one hand, simplified the regulatory framework of linear audiovisual services (TV, internet, mobile telephony) and, on the other hand, introduced minimum rules for non-linear audiovisual services (on demand). The indications of the European legislator have been implemented by legislative decree n. 44/2010, which intervened on numerous provisions of the Radio and Television Codex, introducing obligations for the suppliers of linear and non-linear services regarding programming and investment in European works. It was subsequently modified and integrated by Legislative Decree 204/2017 and Legislative Decree 59/2019, through a complex system of programming and investment quotas and sub-quotas reserved respectively for European and Italian works.
The Italian regulatory framework relating to the provision of audiovisual services has recently changed in light of the approval of the new TUSMA (Legislative Decree No. 208/2021) adopted as the implementation of Directive (EU) 2018/1808, amending Directive 2010/13/EU. This provision extends the application of some rules to video sharing platforms and audiovisual content shared on certain social media services. Among the general principles placed as a guarantee for users, there is ample protection for freedom of expression, including freedom of opinion and of receiving or communicating information or ideas without borders, while respecting human dignity, the principle of non-discrimination and of contrasting hate speech, as well as the objectivity, completeness, loyalty and impartiality of information.
Safeguarding ethnic diversity and cultural, artistic and environmental heritage, both nationally and locally, also falls within the general principles. In addition, in order to protect linguistic minorities, provision is made for reserving a share of transmission capacity in the local area for audiovisual media services that express the same linguistic minorities (on this point, see also paragraph 4.1.8). The following article 5, on the other hand, dictates the general principles set to safeguard pluralism and competition aimed at avoiding the establishment or maintenance of positions of significant power. To this end, art. 51 attributes to AGCOM the task of ascertaining the existence of possible positions damaging pluralism on the basis of a wide range of parameters, regardless of the achievement of predetermined thresholds. With this provision, the legislator reformed the previous TUSMAR (Legislative Decree No. 177/2005), also in consideration of the jurisprudence of the Court of Justice on the point. With regards to the obligations related to programming and investment in European works, the legislator has ordered an increase in the relative quotas. In particular, for on demand suppliers (Netflix, Amazon Prime, etc.), a significant increase in investment obligations in European and Italian productions is envisaged, considered by many to be penalizing and discriminatory towards streaming players. The TUSMA, in Chapter III dedicated to the provisions on advertising, while introducing stricter limits on advertising crowding, also establishes a ban on audio-visual commercial communications relating to gambling. This prohibition is in continuity with the legislation introduced by the so-called Dignity Decree (Legislative Decree no. 87/2018), which prohibited for the first time any form of advertising, even indirect, relating to games and bets with winnings and cash prizes. The prohibitions expressed by the TUSMA and the Dignity decree represent the final destination of a regulatory process aimed at dictating more stringent rules in the online gaming and gambling sector.
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