Italy: Tough Times For Social Networks

Last Updated: 11 February 2010
Article by Felix Hofer

1. Italian lawmakers periodically take on the issue of Internet regulation for gaining consensus in the public opinion and come up with proposals for rules, meant to tighten control on on-line content.

Already back in 2007 a group of local MPs had expressed serious concern about a vacuum of legislation, which – so they felt – could be found with respect to improper exposure of minors to harmful web content. At the time a draft bill was therefore presented in the House, meant: (a) to prevent providers from accepting content submitted by users aged less than fourteen, and (b) to make posting of content by adolescents aged between fourteen and seventeen conditional to parental consent. The bill also provided for severe sanctions for non-compliance as well as for co-liability of minors' parents and of providers (who would be ask for blocks of certain websites).

The initiative was heavily opposed both, by free speech advocacy groups and by the Italian Association of Internet Providers. The possibility of putting in place technical measures apt to achieve the indicated aims was also questioned.

2. Recently (in January 2009) an additional aspect of the problem was addressed by the Italian Information Commissioner (Autorità Garante per la protezione dei dati personali). In a key note speech delivered in Rome during the 2009 European Data Protection Day the Commissioner high lightened the need of achieving a balanced coexistence on virtual platforms between individuals' expectation to freedom of expression and their right to privacy. He therefore specifically acknowledged the general interest of maintaining the Web 'open and freely accessible', but also called for increased sensitiveness towards additional rights of individual Net citizens and felt that efficient protection of 'on-line rights' would necessarily imply adequate user consciousness about the many and serious risks present on the Internet. In detail the Commissioner to the purpose called for:

  • adequate educational initiatives aimed at rising the level of awareness about potential misuses of personal data made available on the Internet,
  • efficient means of self-regulation, favouring Web users' 'responsible behaviour' and 'accurate selection' with respect to personal (in particular, sensitive) data uploaded to the on-line platforms,
  • increased involvement of Providers, who were invited to focus on more intensive user information/education and on offering technical means allowing to prevent unconditional access to data by search engines or to restrict – at least partially – profiles' visibility.

A few weeks later (in April 2009) the Commissioner delved specifically into the privacy risks frequently faced by visitors of social networks and issued a set of guidelines addressing 'sharing forums' and 'virtual marketplaces' such as Facebook, MySpace, Flickr, LinkedIn, Friendster, etc.

While the guidelines pay tribute to the patent advantages offered by such networks, users are also strongly invited not to underestimate the significant risks visitors face when accessing these platforms.

The guidelines therefore recommend to deserve proper attention to the fact that:

  • personal data posted to social networks are no longer under individual's control and may stay and resist on-line forever,
  • a number of such networks allow only profile 'deactivation', but do not provide for a cancellation function,
  • these platforms frequently make use of servers difficult to locate and sometimes placed in countries where law enforcement could result problematic,

additionally suggest to:

  • carefully select information and data posted to such networks,
  • perform an in-advance check of the networks' privacy policies and terms of use,
  • always take care of selecting appropriate privacy settings,
  • respect others' IP rights and expectations to privacy and therefore to restrain from posting third parties' content or images without specific consent,
  • consider the business purposes of these networks and the respective monitoring and profiling practices,
  • be aware of potential fake profiles as well as of the risks of identity theft, financial scams, and computer crime and minors' abuse, disclosure of sensitive or secret information, potential harm to professional reputation
  • remind that individuals' on-line activities are nowadays also carefully monitored by recruiters as well as by (current and former) employers.

3. The privacy risks involved by social networking have also been assessed (and addressed) by the Article 29 Working party1 in June 20092.

In its Opinion the Working party:

  • offers indications about how and to which extent social networks are affected by the key principles laid down in the Data Protection Directives3 (with a focus also on 'territoriality' issues),
  • provides a set of specific requirements and obligations, which social networks are held to comply with (such as: indications about providers' identity, information about purposes and ways of data uses, warnings about privacy risks related to data posting, availability of privacy-friendly default settings, copyright and minors' protection, respect of other data subjects' rights, handling of abandoned accounts),
  • establishes users' rights, equal to those generally granted by the Data Protection Directives (inclusive an easy-to-use complaint handling procedure and user's possibility of adopting pseudonyms).

4. But the sky appears to cloud over for social networks. Italian lawmakers apparently had a plan to serve an additional blow to the on-line world (and specifically to social networks). In a recent draft bill of a Legislative Decree – ostensibly meant to implement the principles of the so-called Audio-Visual Media Services Directive4 – some truly curious and worrying aspects may be found: (a) uploading to (and diffusing on) the Internet of 'animated images' (whether accompanied by sound or not)5 would basically be considered equal to content aired via TV, (b) such activity would therefore become subject to governmental authorization, (iii) all individuals potentially defamed by content posted onto the web would have to be offered a 'right of replying', and (iv) transmission/reproduction of copyrighted material would not be allowed and lead to sanctions.

When notice about such upcoming provisions spread around, huge protest broke out within the Internet community and spicy comments on 'web censorship' were posted. Confronted with such strong opposition the promoters of the bill have very recently stated6 that they did not pursue any monitoring or filtering intent with respect to websites nor seek to introduce restrictions for newsletters, blog posts or amateurish videos, which therefore are to be considered as not included in the definition of 'audiovisual services', diffused through the Internet. An amended text will therefore be proposed when the House is going to vote on the draft bill.

Nevertheless this seems to be just a momentary break in the efforts to put reins onto social networks.

Footnotes

1. An the independent EU Advisory Body (set up by Directive 95/46/EC) for providing expert opinion from member state level to the EU Commission on questions of data protection, promoting harmonized application of the general principles of the Directives in all Member States through co-operation between data protection supervisory authorities, advising the EU Commission on any Community measures affecting the rights and freedoms of natural persons with regard to the processing of personal data and privacy.

2. Through Opinion 5/2009 – WP 163 - on on-line social networking, adopted on 12 June 2009.

3. i. e. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

4. i. e. Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

5. Basically any video posted on YouTube or similar platforms.

6. During the draft bill's discussion in Commission no. 8 of the Italian Senate (hearing no. 159 held on February 4th, 2010).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Felix Hofer
 
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