Di Marco Bellezza e Filippo Frigerio
On the 1st of February, the Italian Communication Authority – AGCOM – published on its website the guidelines to ensure equal treatment of parties/candidates on online platforms in view of the next general elections that will take place on March 4th. The guidelines are the result of the activities carried out by the working group set by AGCOM, with the participation of the major stakeholders including representatives from online platforms and newspapers.
The guidelines cover six main topics:
1. Political Subjects’s Equal Treatment
On traditional means (TV and radio), candidates and parties are granted equal treatment under the par condicio law (Law no. 28 of 2000). The same rules are not applicable to internet, but the working group identified general principles applicable to all communication means.
In this light, online platforms should make sure that all political actors enjoy same equal access to political communications means. It is indeed advisable, according to the working group, that they receive adequate information on the tools offered by each platform for them to carry out online political propaganda. This means that each political subject should be to choose among them freely and without discriminations.
2. Political Propaganda’s Transparency
In compliance with the law on political propaganda (no. 515 of 1993), online political ads shall clearly specify their nature of “political propaganda” and they shall clearly indicate the name of the person responsible for their purchase (so-called “committente responsabile”).
Where possible, these elements shall be included in the ad. If not, they should be indicated on the website the ad links to.
3. Contents Illicit and Activities Whose Dissemination Is Forbidden (i.e. Polls)
Online platforms are advised to set up ad hoc tools to quickly report unlawful contents, especially to contrast defamatory or otherwise illicit contents against candidates.
Similarly, online platforms should allow the Authority to report the presence online of polls in the 15 days before the election day. Indeed, their dissemination is forbidden by AGCOM regulation no. 256/10/CSP.
4. Social Media Accounts of Public Administrations
Under article 9 of Law no. 28 of 2000, public entities shall refrain from using social media for political communications during the elections period. The working group remarks this provision as a good starting point.
It shall be reminded that the Presidency of the Council of Ministers already warned public administrations to use social media accounts in compliance with election laws.
5. Political Propaganda is Forbidden on Election Day and Day Before
The working group interprets the provision on the so-called “silenzio elettorale” (Law no. 212 of 1956) as not directly enforceable online. Article 9 of the abovementioned law prohibits political propaganda, rallies and in general all activities related to elections on the election day and on the day before. The ratio of this provisions is to let the voter ponder without external influences on the ballot he/she will cast.
Indeed, it deems only “desirable” that online platforms prevent political subjects from carrying out propaganda online on those days, in compliance with the legal restrictions in place for the traditional means.
6. On Fact-Checking Methods
Lastly, AGCOM specifically recommends Google and Facebook to enhance already in place fact-checking mechanisms.
These guidelines are an admirable effort, promoted by AGCOM, to self-regulate a very delicate field and provide helpful insights to understand how operators and stakeholders approach Italian election laws online.
It is established that Italian laws concerning political propaganda and par condicio are in general not applicable online, mainly because they were enacted when social media did not exist. At the same time some specific provisions of election laws seem applicable to online platforms like the prohibition (i) to disseminate polls during the 15 days before the elections and (ii) to carry out political propaganda during the election day and on the day before it. The direct enforcement of such prohibitions on the Internet poses some problems, in particular due to the limited liability shield the Internet service providers enjoy pursuant to the e-commerce directive no. 2000/31/EC and the Italian Legislative Decree no. 70 of 2003.
The aim of the working group is then to make some clarity of such grey area waiting for an intervention of lawmakers in this sensitive field. It is a helpful guide for operators in understanding where general principles can be applied to the online environment too. An aim that needs to go hand in hand with the self-responsibility efforts of online platforms, which are acquiring an increasingly important influence in the political arena.
Redatto il 6 febbraio 2018