The Italian implementation of Article 17 of Directive 2019/790: complaints, appeals and the new powers of AGCOM

Abstract

Unless otherwise noted, translations are the author’s own. Directive 2019/790 (hereinafter, the Directive) was implemented in Italy in the usual manner, ie through the issuance by the Parliament of a European delegation law,1 which gave the Government the power to prepare the legislative decree for transposition. The delegation law was followed, albeit with some delay, by the government’s own legislative decree, which entered into force on 12 December 2021.2 As it will be discussed, however, the legislative decree provides for the consequent implementation of a series of regulatory acts by the Italian Communication Authority (hereinafter, AGCOM), which should come into force in the first half of 2022, although the actual timing remains uncertain. ... With regard to Article 17 of the Directive, the Delegation Act laid down only two criteria for its implementation,3 namely (i) the definition of the level of diligence required in order to consider the ‘best efforts’ criterion fulfilled, in compliance with the principle of reasonableness, and (ii) the definition of the framework relating to the complaints and appeals referred to in Article 17(9) of the Directive, including the authority in charge of managing the respective procedures. Regarding the latter, the relevant approach is found in the newly created Article 102decies of the Copyright Act (hereinafter, CA),4 according to which: