The Italian Communications Guarantee Authority recently approved the new Guidelines dictating provisions for influencers.
The main purpose of the Guidelines is to regulate the activities of influencers in the face of the ever-increasing spread of content published online, with video sharing platforms and social media.
As for the scope of application, the document contains a specific definition of "influencer," which encompasses all subjects engaged in an activity similar or otherwise comparable to that of audiovisual media service providers under national jurisdiction.
Influencers covered by the Guidelines must possess the following characteristics:
- at least one million followers resulting from the sum of subscribers on the platforms and social media on which they operate;
- at least 24 pieces of content in the previous year among those specified below;
- average engagement rate value over the past 6 months of 2% or more on at least one platform. Engagement rate is a metric used to calculate the interaction rate of a specific page/profile or content on social networks. Depending on the platform on which it is calculated (Instagram, Facebook, LinkedIn), the engagement rate can refer to different types of interaction (e.g., likes, comments, clicks, saves).
In a nutshell, the definition of an influencer, to which the rules contained in the Guidelines apply, includes individuals who post a lot of content on social media, with a large number of followers registered on their platforms, and who obtain a consistent rate of interaction from users.
On the other hand, subjects that operate in a less continuous and structured manner and do not reach the above thresholds should be excluded from the scope.
Indeed, this disparity in treatment seems to represent a first critical issue: in fact, it is not clear why the fundamental principles contained in the Guidelines, referring to the publication of content on a digital platform, which will be discussed below, cannot and indeed should not also apply to characters with "few followers."
The requirements for the applicability of the Guidelines
The following requirements are necessary for the applicability of the Guidelines:
- provision of content that informs, entertains or educates, likely to generate income directly in execution of commercial agreements with producers of goods and services or indirectly in application of monetization agreements applied by the platform or social media used;
- editorial responsibility of the influencer over the published content, i.e., control over the creation, selection and organization of the content itself: in other words, as is the case with any audiovisual media service provider, the influencer is the entity to whom the editorial responsibility for the choice of audiovisual content is attributable and determines the manner in which it is organized;
- service that is accessible to the general public, i.e., reaches a significant number of users on the Italian territory and has a significant impact on a significant portion of the public, via video sharing platform or social media;
- service that allows the enjoyment of content at the request of the user;
- service characterized by a stable and effective link with the Italian economy;
- use of the Italian language or content otherwise explicitly aimed at users on Italian territory.
And here is another critical profile: according to the provisions of the Guidelines, if hypothetically an Australian influencer published a post in English that violated the provisions contained in the document, he could not be sanctioned. In fact, it would seem more reasonable to provide that the territoriality principle refers to the recipients of the content, not the creators of the content.
The Guidelines expressly refer to the 'Testo Unico Dei Servizi Di Media Audiovisivi' (Legislative Decree No. 208 of November 8, 2021), with particular reference to compliance with the principles of transparency and fairness of information, the application of the regulations on the protection of minors and fundamental personal rights, and the provisions on commercial communications and product placement aimed at making any promotional purposes pursued transparent to the public.
In particular, art. 4 co. 1, art. 6 co. 2 lett. A), art. 32, arts. 30, 37, 38,39, and arts. 43, 46, 47, 48, art. 67 of the Testo Unico are listed among the directly applicable provisions.
Also referred to is the regulatory framework on consumer protection and the Platform Regulations set forth in Resolution No. 298/23/CONS, as well as the Digital Chart Regulations on the recognizability of commercial communication.
In a nutshell, the content disseminated by influencers:
- must not contain any incitement or provocation to commit crimes;
- must ensure respect for human dignity and must not present content or expressions likely to spread, incite, propagandize or justify, minimize or otherwise legitimize violence, hatred or discrimination and offend human dignity towards a group of people or a member of a group;
- must not contain elements likely to result in the author's deresponsibility or co-responsibility for the injury to human dignity or any other form of secondary victimization;
- must not contain content that is seriously harmful to the physical, mental or moral development of minors;
- must comply with the regulations on commercial communications, sponsorship and product placement, and comply with the prohibition of surreptitious advertising;
- must ensure the truthful presentation of facts and events, correctness and objectivity of information, including by mentioning the sources used, in contrast to online disinformation;
- must ensure compliance with copyright and intellectual property protection provisions.
In the event of violation of the provisions referred to, not only the penalty regime and administrative sanctions provided for in Article 67 of the Testo Unico will apply, but also, where the conduct constitutes a crime, the relevant criminal consequences.
Let us therefore look at some criminal aspects that may be relevant in the scope of the Guidelines.
Incitement to commit a crime on the Web
Within the scope of the protection of fundamental rights, the Testo Unico Dei Servizi Di Media Audiovisivi expressly refers to Article 604-bis of the Criminal Code, which provides for the crime of propaganda and incitement to commit crimes on grounds of racial, ethnic and religious discrimination. In addition, Article 604-ter regulates the aggravating circumstance of discriminatory purpose, applicable to any crime except those punishable by life imprisonment.
In general, if one or more persons induce or incite someone to commit an unlawful act publicly, in accordance with the provisions of Article 414 of the Criminal Code, the crime of Instigation to commit a crime is committed. The provision provides for an aggravating circumstance if the act is committed through computer or telematic means.
The Supreme Court has already dealt in recent years with the issue of incitement to commit a crime on the web, specifying in this regard that "For the purposes of the integration of the crime of incitement to commit a crime, provided for in Article 414 of the Criminal Code, (…) it is not enough to externalize a positive judgment on a criminal episode, no matter how hateful and reprehensible it may appear to the generality of the consociates, but it is necessary that the agent's behavior is such by its intrinsic content, the personal condition of the author and the factual circumstances in which it is carried out, as to determine the risk, not theoretical, but actual, of the consummation of other crimes and, specifically, of crimes damaging interests homologous to those offended by the crime exalted (Cass. Pen, Sec. II, sent. no. 22163, 21.2.2019)."
Transparency and fairness of information
As for the protection of the fairness and impartiality of information, the dissemination of false news can constitute a crime if it is likely to disturb public order: it is sufficient if the news is tendentious or exaggerated or false (Article 656 of the Criminal Code). In addition, news that foretells disasters, accidents or dangers that do not exist integrates the crime of procuring alarm (Article 658 of the Criminal Code). Another crime provided for in the Criminal Code is the abuse of popular credulity (art. 661 of the Criminal Code), if this abuse causes disturbance of public order.
If this abuse consists of artifice or deception, aimed at deceiving the passive party in order to obtain an unfair profit, the crime of fraud (Article 640 of the Criminal Code) will be configured instead.
Anyone who spreads false news that is likely to cause a significant alteration in the price of financial instruments is committing the crime of Market Manipulation (Article 185 of Legislative Decree No. 58/1998), which, moreover, also falls under the predicate offenses of Legislative Decree 231/01. Finally, the dissemination of false news concerning a person may constitute the crime of aggravated defamation (Art. 595, para. 3, Criminal Code).
As for possible criminal profiles in the area of copyright infringement (Art. 171 ff. L. No. 633/1941), digital content is also subject to the copyright law: therefore, the origin of such content (so-called authorship) must always be clear. This means that if, with the prior consent of the owner of the content, the influencer uses it for any purpose (advertising, propaganda...) it must always be indicated that the image or video is owned by another party who must be clearly identified.
In addition, whenever an influencer sponsors a product, he or she must indicate this in the publication, in the text accompanying the content, or in an overlay within the content itself, signaling the collaboration with the brand so that the advertising nature of the content is immediately recognizable (often the words "paid partnership with..." or "advertisement" are found).
Moreover, it should be remembered that the figure of the influencer himself functions as a real brand. In fact, it is recognizable by its followers and has a distinctive character, so much so that it can register its name as a trademark at the UIBM (Italian Patent and Trademark Office) and be protected in front of all those who exploit its popularity for economic advantage.
Protection of minors: online corruption of minors, baby influencers, sharenting
With regard to the protection of minors, Cass. Sec. III Sent. no. 15261/2023 has already addressed the issue of the configurability of the case of corruption of a minor referred to in the first paragraph of Article 609 quinquies of the Criminal Code when the conduct of the perpetrator is carried out through telematic means.
The Court, in this regard, stated that the notion of sexual acts carried out "in the 'presence' of a minor" - for the purpose of having him or her assist - can also include conduct carried out remotely, as long as it is shared virtually in real time with the victim. The novelty of the decision lies in assigning a new meaning to the concept of "presence"-not only physical, but also "virtual"-contained in the crime of corruption of a minor regulated in the first paragraph of the rule.
The fact underlying the decision concerned acts of autoeroticism performed by the defendant in live streaming and shared on the social network Instagram with some users, including a minor.
Beyond the sharing/publication of sexually explicit content to the detriment of minors, the so-called phenomenon of "baby influencers" is relevant in this context: in Italy, in fact, there is no real regulation of the protection of minors in this sense (for aspects related to work, the economic side, privacy, the right to reputation and image).
This issue also concerns the phenomenon of "sharenting," that is, constant sharing, by parents, of content featuring their children. In this area, too, there are no specific regulations in Italy. The regulation of these aspects is left to the agreements between the parties, such as contracts signed between parents and brands, which are based on general provisions, such as those concerning the use of image.
AGCOM Technical Table and Code of Conduct for Influencers
It should be noted that the obligations introduced by AGCOM coincide, to a large extent, with those already applied by platforms for sharing videos to influencers, with those of transparency and recognizability of commercial communications, and with the obligations descending from the Consumer Code. Thus, the provisions of the Guidelines do not appear aimed at filling a regulatory gap, but rather at clarifying and circumscribing, through the introduction of thresholds and definitions, the scope of application of an already existing regulatory framework.
There are, moreover, numerous aspects yet to be defined and regulated. In this regard, the Guidelines contain the provision of an AGCOM Technical Table that will provide for the drafting of one or more codes of conduct through co-regulatory procedures, which will identify further measures, modalities, technical-instrumental expedients with which influencers can adjust their activities to comply with the regulations.
Influencer marketing and implementation of the Organization, Management and Control Model
The Authority at the moment has reserved its position on whether agencies and intermediaries between influencers and companies (the so-called "influencer marketing phenomenon") should also be included among the recipients of the Guidelines.
In any case, also in light of the provisions and in view of the ever-increasing attention to content published online, it seems essential for such companies to allocate sufficient resources to the adoption or implementation of Organization, Management and Control Models provided for by Legislative Decree 231/01, suitable for preventing criminal risks arising from the performance of their activities.
In fact, the business environment that has been created as a result of the spread of social platforms entails specific criminal risks: where the measures provided for in the regulatory provisions are not complied with, companies could be charged with serious criminal liability.
It is therefore essential to have an effective compliance system designed to mitigate and prevent the risk of crimes being committed.
First of all, it will be necessary to concretely identify and verify these risks, in relation to the management of business processes and the complexity of the organization, in order to then provide effective internal control systems and adopt specific prevention measures.
The adoption of an Organizational Model also allows for periodic monitoring by a specially appointed Supervisory Board, in order to ensure the proper application of the Organizational Model and promptly identify any conduct likely to violate the regulations.