The Italian Government Adopts a New Legislative Decree Amending the Audiovisual Media Services Code

This article is written in collaboration with Eugenio Foco

On April 17, 2024, the Corrective Decree which supplements and corrects some of the provisions laid down in the Italian Audiovisual Media Services Code (“AVMS Code”) was published in the Italian Official Gazette. These amendments will be binding starting from May 1, 2024.

The final approval of the Corrective Decree follows a complex legislative itinerary which was characterized, in particular, by the opinions rendered by the Advisory Section for Regulatory Acts of the Council of State (see here) and the ad hoc committees of the Senate and the Chamber of Deputies.

The main introduced by the Corrective Decree can be briefly summarized as follows:

• The introduction of the definition of “teleshopping spots”, i.e. “teleshopping of a minimum uninterrupted duration of less than 15 minutes in audiovisual media services and 3 minutes in radio media services“. Therefore, the 15-minute threshold sharply delineates the difference between a teleshopping spot, which falls within the advertising limits, and a teleshopping window, to which advertising limits do not apply.
• Introduction of the concept of an “audio-only content sharing platform service”, defined as a service having the same characteristics as a video sharing platform, “in which the shared content consists of sound programs or user-generated audio, or both, intended for the general public”. Consequently, where applicable, the provisions regulating VSPs will apply also to these audio-only content sharing platforms.
• Amendment of the definition of “telepromotion” in such a way as to embrace radio service providers as well.
• The definition of “self-promotion” has been amended, in such a way as to allow broadcasters to cross-promote media services (TV channels and VOD) and radio stations belonging to the same group without affecting the quantity restrictions on advertising.
• The Corrective Decree repeals the provision pursuant to which providers of radio services could not be owners at the same time as being authorized to provide digital radio services at national and local level.
• All audiovisual media service providers must now develop action plans, at least every three years, outlining proportionate measures to ensure that audiovisual media services are made more accessible to people with disabilities.
• By December 31, 2024, a new Self-Regulation Code for the Protection of Minors must be adopted, which will replace the previous one.
• Elimination of the protected slot (fascia protetta) between 4 p.m. and 7 p.m. aimed at protecting minors.
• Video-sharing platform providers are required to inform AGCOM whether they operate in Italy (if already operating) or if they intent to begin operating in Italy.
• The scope of application of the provisions laid down for video-sharing platform providers has been extended also to audio-content sharing platforms or user-generated audio content sharing platform or both, as compatible.

The main new developments introduced through the Corrective Decree lay in the new provisions set forth for programming and investment obligations applicable to linear and on-demand audiovisual media service providers.

PROGRAMMING AND INVESTMENT OBLIGATIONS FOR LINEAR AUDIOVISUAL MEDIA SERVICE PROVIDERS

With reference to the programming obligations applicable to linear audiovisual media service providers (different from the public service broadcaster, RAI) the Corrective Decree has confirmed that such providers must reserve the majority part of their transmission time (excluding the time allocated to news, sports events, television games, advertising, teletext and teleshopping) to European works. A sub-quota equal to 1/3 of the European quota must be reserved to works of Italian original expression, anywhere produced.

With reference to the investment obligations, the Corrective Decree has not amended the quota to be reserved for European works produced by independent producers, equal to 12.5% of the relevant net revenues, nor the quota to be reserved to works of Italian original expression anywhere produced, by independent producers in the last five years, equal to the half of the European quota.

It is interesting to note that the Corrective Decree specifically states that AGCOM must indicate the costs that are due for the purposes of complying with such obligations.

In addition, the Corrective Decree reduces the investment sub-quota for cinematographic works of Italian original expression, anywhere produced by independent producers from 3.5% to 3% of net revenues – the 75% of such sub-quota must be reserved for recent works.

Furthermore, the Corrective Decree has eliminated the possibility for the Ministry of Enterprises and Made in Italy (MiMiT) and the Ministry of Culture (MiC) to increase the existing sub-quotas or introduce new ones, as well as introducing specifications on how AVMS producers must comply with the obligations at hand.

PROGRAMMING AND INVESTMENT OBLIGATIONS FOR NON-LINEAR AUDIOVISUAL MEDIA SERVICE PROVIDERS

With reference to the programming obligations applicable to on-demand audiovisual media service providers, the Corrective Decree has confirmed that such providers must reserve 30% of their catalogue for European works.

At the outset, the Corrective Decree has decreased the investment obligation in European works produced by independent producers from 20% to 16% of Italian net revenues.

At the same time, however, the Corrective Decree has significantly increased the sub-quota for works of Italian original expression, wherever produced by independent producers in the last five years from 50% to 70% of the European quota. A sub-quota is reserved to cinematographic works of Italian original expression, anywhere produced by independent producers in the last five years equal to 27% of the Italian sub-quota.

Finally, as for the investment obligations for linear providers, the Corrective Decree has also eliminated the possibility for the MiMiT and the MiC to increase the existing sub-quotas or introduce new ones with reference to non-linear providers, as well as introducing specifications on how AVMS producers must comply with the obligations at hand.