Italy

[IT] AGCOM appointed as Italian Digital Services Coordinator

IRIS 2023-9:1/11

Francesco Di Giorgi

Autorità per le garanzie nelle comunicazioni (AGCOM)

In accordance with Article 49, paragraph 2, of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on digital services (DSA), the Italian legislator has designed the Italian Communications Regulatory (Agcom) as Digital Services Coordinator (Article 15 of the law decree of 15 September 2023, n. 123 entitled "Urgent measures to combat youth hardship, educational poverty and juvenile crime, as well as for the safety of minors in the digital environment").

Agcom has to guarantee the effectiveness of the rights and the obligations established by the DSA by supervising the achievement of the expected objectives. Especially regarding the protection of minors from pornographic content available online, as well as other illegal or otherwise prohibited content, conveyed by online platforms or other intermediary service providers, and contribute to achieving a safe digital environment.

It is also provided that the Competition and Market Authority, the Personal Data Protection Authority and any other national authority, within the scope of their respective competencies, ensure all necessary collaboration with the Digital Services Coordinator. To guarantee the aforementioned objectives, these Authorities can regulate the application and procedural aspects of mutual collaboration with memoranda of understanding.

AGCOM has to detail conditions, procedures and operating methods for exercising the powers and functions it holds as Coordinator of Digital Services, pursuant to the DSA. And carry out related tasks in an impartial, transparent and timely manner.

To achieve the new tasks effectively, it is provided that, in case of violation of the obligations set out in articles 9, 14, 15, 23, 24, 26, 27, 28, 30, 45, 46, 47 and 48 of the DSA - Agcom, in the exercise of the powers referred in the combined provisions of articles 51 and 52 of the DSA, imposes, based on principles of proportionality, adequacy and respect for adversarial proceedings. According to the procedures established with its monetary regulation, administrative sanctions up to a maximum of 6% of the annual worldwide turnover in the financial year, prior to the infringement notice, to the provider of an intermediary service falling within its sphere of competence, as Digital Services Coordinator, pursuant to national and European law applicable to the offence.

In case of inaccurate, incomplete or misleading information, failure to respond or rectification of inaccurate, incomplete or misleading information and failure to comply with the obligation to undergo an inspection, AGCOM imposes a pecuniary administrative sanction up to a maximum of 1% of the worldwide turnover achieved in the previous financial year.

The maximum daily amount of late payment penalties that AGCOM can apply is equal to 5% of the average global daily turnover of the supplier of an intermediary service achieved in the previous financial year, calculated starting from the date specified in the decision.

To apply the fine, the Authority considers the seriousness of the fact and the consequences resulting from it, as well as the duration and possible recurrence of the violations.

Lastly, the expansion of AGCOM's organic structure and the corresponding costs are expected. They represent a contribution equal to 0.135 per thousand of the turnover resulting from the latest balance sheet approved by the providers of intermediary services established in Italy, as defined by the DSA Regulation. AGCOM will have to identify, with the collaboration of ISTAT and the Revenue Agency, the list of parties required to pay the tax contribution.