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16 January 202514 minute read

Innovation Law Insights

16 January 2025
Podcast

Why Meta can’t give up fact checking in Europe

Mark Zuckerberg’s move toward lighter moderation might work in the US, but can Meta replicate it under Europe’s strict Digital Services Act. Listen to the latest episode of our Diritto al Digitale podcast on Apple Podcast, Spotify, YouTube and our blog.

 

Data Protection and Cybersecurity

The lack of transparency on data processing may constitute an unfair commercial practice

A recent ruling by the Italian Council of State (highest administrative court in Italy) confirmed the need for digital services operators to take a more protective approach for users of their platforms. The ruling states that a lack of transparency in collecting personal data may, in certain cases, constitute an unfair commercial practice within the meaning of the Italian Consumer Code.

The case on lack of transparency as unfair commercial practice

At the heart of the matter is a well-known digital technology and services company, which had been fined EUR10 million from the Italian Competition Authority (AGCM). The antitrust investigation highlighted what it deemed to be inadequate information on the commercial purposes behind data collection, as well as overly complicated mechanisms to refuse or revoke consent to profiling and marketing.

In essence, users were faced with having to provide (or subsequently struggle to withdraw) their consent to the processing of data for marketing purposes, as a necessary condition for accessing certain key functionalities.

The AGCM's measure, initially reformed by the Lazio Regional Administrative Court, was partially reinstated by the Council of State, which recognized the lack of transparent information to the user as an integral element of a misleading commercial practice.

The key points of the court decision:

  • Economic value of data
    The Council of State pointed out that personal data (and browsing data) have a significant economic value, as they form the basis of activities such as user profiling and personalized marketing. Moreover, the user's decision to provide their data, when creating the platform ID, constitutes a "decision of a commercial nature" relevant to the application of the Consumer Code. Consequently, collecting the data might fall within the scope of unfair commercial practices subject to the consumer discipline.
  • 'Multilevel' disclosures and ease of withdrawal of consent
    The judgment emphasized the need for clear, simple and easily accessible disclosures, reiterating that consent to profiling and marketing must be revocable as easily as it is given. The use of overly complex "multilevel" disclosures can be an obstacle to this, generating confusion for users as to the actual use of their data.
    In this case, the notice was deemed too complex as: (i) it required the user to open a link on the first screen, which opened a new window where the user was only informed they could receive marketing emails and they could deactivate the service of receiving emails; (ii) to obtain more information about how the data from the use of the platform would be used, the user had to access the organisation's digital store by opening the links located under a specific icon.
  • Consumer Code and GDPR
    A lack of transparency with regard to personal data might be considered not only a violation of the General Data Protection Regulation (GDPR), but may also constitute an unfair commercial practice as regulated under the Consumer Code. This results in a dual protection for consumers, who are protected both in terms of personal data protection and against possible misleading or aggressive practices.

Practical implications

  • For digital platforms: The decision highlights how managing personal data cannot disregard adequate transparency towards users. Practices such as fragmented policies or "hidden" profiling risk exposing companies to penalties under both consumer protection and the GDPR.
  • For consumers: They're more aware of the economic value of their data and, at the same time, the possibility to leverage unfair commercial practices rules when they encounter information gaps or complex consent procedures.

Conclusions

The Council of State's decision highlights how the protection of personal data and consumer protection can be closely linked. Personal data has economic value and requires clear, transparent processing. Digital platforms will have to ensure their policies are easy, comprehensible, and respectful of the user's will, otherwise risking sanctions by both the Data Protection Authorities and those supervising the fairness of commercial practices.

Author: Gabriele Cattaneo

 

Intellectual Property

Protecting a social media profile's aesthetic: Copyright and unfair competition

In the digital era, the aesthetic of a social media profile has become a distinctive and highly valuable economic and creative asset. This concept of "aesthetic," encompassing the set of visual and stylistic choices of a social media profile – such as colour combinations, fonts, images, and atmospheres – helps define a creator's visual identity, contributing to their success and recognizability. But the legal protection of this overall aesthetic raises complex and unresolved issues. This article explores potential legal frameworks for protecting social media aesthetics, focusing primarily on the solutions offered by copyright law.

The term "aesthetic" refers to the overall look and feel of a social media profile, a representation that goes beyond individual posts to encompass the visual coherence and general vibe of the feed. Building an appealing aesthetic requires creativity, time and strategy, turning it into a valuable asset for influencers and brands. Finding effective ways to protect this global aesthetic is particularly challenging.

Copyright law exclusively safeguards tangible creative expressions, such as photographs, videos, graphics, or logos. It doesn't extend its protection to abstract concepts, ideas or styles. So, while individual social media posts – such as original images or videos – may be protected, the overall aesthetic of a profile is generally excluded from the scope of copyright protection. This is because the aesthetic as a whole is often deemed too generic or common to warrant protection. For instance, using specific colour combinations or visual layouts cannot be considered copyright infringement unless it's possible to prove someone has directly copied specific, protected elements. This gap makes it challenging for creators to defend their distinctive style, especially when widely used visual elements are easily replicable.

A recent example highlighting these challenges is the legal dispute between US influencers Sydney Nicole Gifford and Alyssa Sheil. Gifford accused Sheil of copying her distinctive style, known as the "clean girl aesthetic," characterized by neutral tones like cream and beige, and a minimalist, refined look.

According to Gifford, after a meeting in 2022, Sheil began replicating several distinctive aspects of her social media profile, including camera angles, font choices, apartment décor featured in posts, and even hairstyle. Gifford argues that this constitutes copyright infringement, misappropriation of image, and unfair competition. She's demanded USD150,000 in damages and for Sheil's content to be removed from social platforms.

Sheil, in her defence, claimed that her aesthetic was developed independently and is not exclusive to Gifford, as it reflects a widely adopted style.

This case underscores the current difficulties in safeguarding the aesthetic of a social media profile. Copyright law is limited to protecting tangible creative expressions – such as photos, videos, graphics, or logos—and does not extend to general concepts like ideas, styles, layouts, or the "vibe" of a feed. This leaves a legal void that complicates efforts to protect a creator's work from imitation by peers.

When copyright law can't be applied, unfair competition laws could provide an alternative. In Italy, Article 2598, paragraph 3, of the Civil Code addresses parasitic competition, which involves systematically imitating another's ideas and initiatives to appropriate the economic and creative value generated by a competitor.

In the context of social media, parasitic competition might occur when an influencer replicates another's aesthetic – such as using the same colour schemes – and leverages their success and recognizability to gain a competitive advantage. This type of behaviour goes beyond mere inspiration and aims to confuse the audience, causing economic harm to the original creator.

Author: Carolina Battistella

 

Gaming and Gambling

SIAE’s New licensing for video games, metaverse, and augmented reality

The Italian Society of Authors and Publishers (SIAE) has introduced a new licensing model specifically tailored for online services that distribute video games and applications within the metaverse and augmented reality (AR) environments. The licence covers the use of copyrighted music protected by SIAE, addressing both reproduction rights (as per Article 13 of the Italian Copyright Law) and communication/making available to the public rights (as per Article 16 of the same law).

Licence designed for the future

This innovative licensing model is a response to the rapidly evolving digital market. It's an experimental tool aimed at meeting the needs of new digital contexts without setting a precedent for future agreements. Instead, it represents a significant first step towards clearer and more flexible regulation in these emerging fields.

SIAE’s approach is forward-thinking, as it reserves the right to update and modify the licence in line with international sector developments and technological innovations. This ensures that the licensing conditions remain relevant and adaptable to changes in how musical content is consumed and distributed.

Supporting creativity in innovative contexts

SIAE’s initiative reflects its commitment to supporting creativity and protecting copyright in the most innovative contexts. By collaborating with users, SIAE aims to create a balanced and sustainable ecosystem. This new licensing model not only safeguards the rights of creators but also encourages the growth and development of digital platforms that integrate music into their offerings.

The introduction of this licence marks a pivotal moment in the digital rights landscape. It acknowledges the unique challenges and opportunities presented by video games, the metaverse and AR. By proactively addressing these needs, SIAE is setting a precedent for other copyright organisations worldwide.

Key provisions:

  • Limitations of Mandate and Placement Reservation (Article 3): The right holders can request the withdrawal of the mandate for online rights management, and placement reservations for certain works can be communicated on SIAE’s website.
  • Granted Rights and Authorization Limits (Article 5): The licence allows recording, reproducing, and communicating works for private use and it doesn't extend to public performances or other uses not specified in the licence.
  • The licence explicitly prohibits sublicensing or the transfer of rights to third parties without prior written consent from SIAE. Unauthorized sublicensing results in contract termination and possible damages. Furthermore, the licensee is barred from acting as an intermediary for copyrighted works unless designated as a collective management organisation. The licensee retains responsibilities for compliance with applicable copyright laws.
  • Certain rights are excluded from the licence, including moral rights of authors, technical adaptations of works, and the creation of derivative works like translations or modifications. Rights such as synchronization, graphical reproduction, and the reproduction of lyrics and scores are also outside the licence’s scope.
  • The licence also prohibits using the SIAE repertoire to train AI systems or machine learning processes aimed at creating new works.

SIAE’s new licensing model is a visionary step towards a future where digital rights are managed with flexibility and foresight. It underscores the importance of evolving copyright frameworks to keep pace with technological advancements, ensuring that creators’ rights are upheld while embracing the potential of new digital frontiers.

Author: Vincenzo Giuffrè

 

Technology Media and Telecommunication

AGCom Communication Markets Monitoring System for the first nine months of 2024

The Italian Communications Authority (AGCom) has published the Communications Monitoring Report No. 4/2024, containing data for the first nine months of 2024.

The data included in the Communications Monitoring Report reveals that the total number of direct fixed-line networks at the end of September 2024 showed no significant change compared to June 2024, remaining at 20.25 million lines. On an annual basis, this represents an increase of 64,000 accesses, and compared to the corresponding period in 2020, there was an increase of 487,000 accesses (up 2.46%).

AGCom also notes that copper-based lines have decreased by approximately 150,000 units on a quarterly basis and by 700,000 compared to September 2023. Over the past four years, the decrease amounts to 4.6 million accesses.

There's a continued increase in lines based on more advanced technologies. Broadband lines are estimated to be around 19.2 million, showing growth both on a quarterly and annual basis, with increases of 38,000 and 217,000 lines, respectively.

FTTC (Fiber To The Cabinet) accesses at the end of September 2024 totalled 9.3 million, showing a decrease of 670,000 lines and, therefore, a 6.7% drop, compared to September 2023. FTTH (Fiber To The Home) connections, totalling 5.53 million in September 2024, have increased by over 290,000 lines compared to the previous quarter and by 1.18 million compared to the same period in 2023. Compared to September 2020, this is an increase of 3.86 million lines. Fixed Wireless Access (FWA) lines have also grown, though to a lesser extent (around 220,000 units annually), reaching about 2.3 million lines by the end of September 2024.

This trend indicates a significant improvement in connection speeds, as between September 2020 and September 2024, the proportion of lines with speeds of 100 Mbit/s or higher rose from 48.8% to 76.5% of the total. The share of lines offering transmission speeds of 1GB/s or higher also increased, from 7.6% to 26.2% of the total.

The data from the report confirms the continued increase in data consumption. The average daily traffic in terms of total volume for the period from January to September 2024 grew by 16.2% compared to 2023 and by 68.8% compared to 2020. These figures are reflected in daily broadband traffic per line: unit consumption has increased by 58.3% compared to 2020, from 5.88 GB to 9.30 GB per line on average per day.

With regard to the mobile network segment, AGCom reports that the total number of active SIMs at the end of September 2024 (including "human" SIMs, ie "voice only," "voice+data," and "data only" that involve human interaction, and M2M, ie "machine-to-machine") reached 109 million, increasing by 509,000 units annually. Specifically, M2M SIMs grew by 730,000 units annually, totalling 30.4 million. Human SIMs, totalling 78.6 million by September 2024, saw a decrease of 221,000 units compared to the same period in 2023. According to AGCom, 13.7% of human SIMs in September 2024 were business SIMs, while the remaining 86.3% were intended for residential customers.

According to AGCom, about 58.9 million human SIMs generated data traffic during the first nine months of 2024, an increase of approximately 1.6 million compared to the same period in 2023. This shows that mobile data traffic in September 2024 increased by 15.6% compared to the same period in 2023 and by 160.8% compared to 2020. The average daily data consumption per SIM in the first half of the year is estimated to be about 0.86 GB, an increase of 12.1% compared to 2023 and of 150.9% compared to 2020, when the daily data consumption was estimated at 0.34 GB.

Authors: Massimo D'Andrea, Flaminia Perna, Matilde Losa, Arianna Porretti


Innovation Law Insights is compiled by DLA Piper lawyers, coordinated by Edoardo BardelliCarolina BattistellaCarlotta BusaniGiorgia Carneri, Noemi Canova, Gabriele Cattaneo, Maria Rita CormaciCamila CrisciCristina CriscuoliTamara D’AngeliChiara D’OnofrioFederico Maria Di VizioNadia FeolaLaura GastaldiVincenzo GiuffréNicola LandolfiGiacomo LusardiValentina MazzaLara MastrangeloMaria Chiara MeneghettiDeborah ParacchiniMaria Vittoria Pessina, Marianna RiedoTommaso RicciRebecca RossiRoxana SmeriaMassimiliano Tiberio, Federico Toscani,  Federico Toscani, Giulia Zappaterra.

Articles concerning Telecommunications are curated by Massimo D’AndreaFlaminia Perna and Matilde Losa and Arianna Porretti.

For further information on the topics covered, please contact the partners Giulio CoraggioMarco de MorpurgoGualtiero DragottiAlessandro FerrariRoberto ValentiElena VareseAlessandro Boso CarettaGinevra Righini.

Learn about Prisca AI Compliance, the legal tech tool developed by DLA Piper to assess the maturity of AI systems against key regulations and technical standards here.

You can learn more about “Transfer”, the legal tech tool developed by DLA Piper to support companies in evaluating data transfers out of the EEA (TIA) here, and check out a DLA Piper publication outlining Gambling regulation here, as well as a report analyzing key legal issues arising from the metaverse qui, and a comparative guide to regulations on lootboxes here.

If you no longer wish to receive Innovation Law Insights or would like to subscribe, please email Silvia Molignani.

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