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Wednesday, December 23, 2009
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R.T.I., the television arm of Italy's Mediaset group (i.e. the Berlusconi television group), brought an interim injunction before the Court of Rome against YouTube LLC, YouTube Inc. and Google UK Ltd. with reference to some videos reproducing the 10th edition of the reality television show named "Grande Fratello" (Big Brother) published on YouTube and Google Video platforms. In particular, R.T.I. alleges that such conduct is in breach of their rights on those videos and on the trademarks and domain names relating to the sign "Grande Fratello".
The court held on one hand that according to Article 15 of the E-Commerce Directive, as implemented in Italy, providers are not obliged to monitor the contents published on their websites by their users since this would lead to their "unacceptable objective liability" (i.e. a liability that is not due to a negligent or wilful misconduct). However, on the other hand it also added that the applicable laws and case laws: 
"make a provider liable when it does not merely provide a connection to the Internet, but offer additional services (e.g. caching, hosting) and/or performs checks of the information and especially when either it is aware of suspicious material and does not check its unlawfulness and removes it or it is aware of its unlawfulness and does not act"
On the basis of this reasoning, the court ordered the defendants to immediately remove from their servers and consequently to promptly disable the access to any content reproducing images concerning the 10th edition of the "Grande Fratello". 
This decision is interesting since the court making reference to the performance of caching and hosting services by Internet service providers completely ignores Articles 13 and 14 of the E-Commerce Directive which expressly set up a liability exemption regime for providers of caching and hosting services. Moreover, the court also ignores the continuous requests sent by Google to R.T.I. aimed at obtaining from the latter the codes of the videos that they require to remove which have never been provided by R.T.I.. Indeed, from a search on www.youtube.com using the words "grande fratello", a huge amount of results pop up. YouTube cannot obviously remove all of them since some of these videos might not in breach of R.T.I.'s rights (e.g. home made videos merely named "grande fratello") and some of them might not relate to the 10th edition of the "Grande Fratello" subject of R.T.I.'s claim. 
The removal of all the videos subject of R.T.I.'s claim would require indeed the use of enormous resources by YouTube that it not obliged to invest since, according to the E-Commerce Directive, providers are not obliged to monitor the contents published by their users.
We will see what the next steps of this "saga" will be.  
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Thursday, December 17, 2009
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The Advocate General of the European Court of Justice issued its opinion on the compliance with the European principle of the freedom to provide services of the current Dutch gaming license system which prescribes:
  • that it is prohibited to organise or promote gambling without having obtained a licence for that purpose; and
  • that only one provider for each category of game may receive a licence.
The dispute arose from 2 cases involving Betfair and Ladbrokes against the current Dutch gaming licensees De Lotto and SGR.
The Advocate General held that:
the Court has consistently held that the Member States may restrict the organisation and exploitation of gaming in their territory in order to protect consumers [and …] that a Member State may legitimately grant a single operator the right to operate betting and gaming
Also, in relation to the possibility under the EU principle of freedom to provide services to limit the offer by an online operator licensed in an European Member State to offer its games in another Member State, the Advocate General held that:
in accordance with the position adopted by the Court in Liga Portuguesa de Futebol Profissional and Bwin International, the principle of mutual recognition does not apply to a licence to offer games on the Internet
Finally, the Advocate General held:
the EU principle of freedom to provide services “precludes the extension of a single authorised operator’s licence without competitive tendering unless such extension addresses an essential interest […] or an overriding requirement in the public interest as laid down in the case-law and unless it conforms to the principle of proportionality. It is for the national court to determine whether that is the case”.
The opinion of the Advocate General is not binding for the European Court of Justice, but it shows that after the Bwin Case, European authorities are adopting a very conservative approach which - as stressed in a previous post - are likely to have negative consequences for gaming operators. 
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Sunday, December 13, 2009
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In a previous post, we had discussed about the issue of the rules governing the authorization process necessary for the provision of online bingo in Italy. However, the launch of online bingo was still pending since the Italian Gaming Authority had to adapt the rules governing online bingo to the new rules governing offline bingo.
Such additional rules have now been issued prescribing - among others - that during a trial period expiring on 31 December 2010 the awarded jackpot shall be at least 70% of the total amount collected from the sale of bingo cards during each game and also amending the regulations on the allocation of the prizes.
According to the Italian Gaming Authority the launch of online bingo will occur before the end of the year. We will see whether it will be so successful as expected.
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Thursday, December 10, 2009
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The offer of games to Italian residents can be performed only by operators holding an Italian gaming license. The breach of this obligation by operators and companies advertising non-licensed operators is punished with criminal sanctions. Also, since 2007 Italian ISPs are obliged to block the access by Italian residents to non-licensed gaming websites that are included in a blacklist which is updated on a monthly basis.
However, players and operators have found means able to circumvent the block implemented by ISPs. This has led to considerable complaints by licensed operators which are suffering damages because of non-licensed operators. As a consequence, the Italian Gaming Authority has now announced that it will implement stricter measures against non-licensed gaming operators.
We’ll see whether these new measures will encourage most of the operators to abide with local gaming laws and apply for an Italian license.
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Wednesday, December 9, 2009
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As already discussed in a previous post, any company advertising its products/services, having a website or performing any marketing activity should carefully review its compliance with the regulations governing unfair commercial practices.
This is even more true after the issue by the European Commission the Guidance on the Implementation/Application of the Directive 2005/29/EC on Unfair Commercial Practices. The Guidance has clarified – among others – that:
  • the obligations prescribed by the Directive are applicable also to before/after sale practices e.g. the Italian Competition Authority fined a telecoms company for delaying and preventing its customers from switching to another service provider;
  • social networking sites and blogs can lead to hidden unfair commercial practices when - for instance - companies pay bloggers to promote and advertise their products;
  • unfair commercial practices can arise through price comparison websites that have contractual arrangements with or belong to traders and are used to conceal advertisements of such trader’s products;
  • combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers fall within the scope of the Directive;
  • unfair commercial and therefore prohibited practices include the use of packaging of products similar to those of competitors if such similarity is able to confuse the average consumers.
The broadening of the scope of the Directive and the considerable applicable sanctions give rise to relevant risks for companies engaged in advertising activities.
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Tuesday, December 8, 2009
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Recentpoker.com reports that the Belgian Parliament has passed a new law on gaming and betting law. The Belgian draft law had been reviewed by the European Commission which had issued a detailed opinion on the bill. The points of the draft law that raised major concerns related to:
  • the requirement for online operators to be established in Belgium;
  • the unjustified limitation of the number of available licenses;
  • the requirement to have a server located in Belgium;
  • criminal sanctions on consumers wishing to play with EU licensed operators.
Despite of the objections from the European Commission, the Belgian government believed that no amendment of the draft law was necessary and now the Belgian Parliament has given its approval to the law.

As a general comment, the arguments raised against the Belgian draft law sound very familiar to an Italian lawyer. Indeed, the same restrictions now implemented by the Belgian new law have been in place in Italy for several years and only following the coming into force last summer of the so called “Community Law” life for gaming operators is getting better and better in Italy. The Community Law prescribed in fact that gaming operators do not need to be established in Italy and that no relevant restrictions apply to the number of online gaming licenses. This means that any operator fulfilling the conditions set out in the law can obtain an online gaming license. 
Indeed, the Italian government expects that a more “friendly” approach towards gaming operators is likely to attract new operators to the Italian market so enhancing competition to the benefit of Italian players.  
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Thursday, December 3, 2009
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Following the coming into force of the Directive 2005/29/EC on unfair commercial practices (the “Directive”), companies now understood the need to deeply review claims of their advertising campaigns, marketing materials and prize competitions before they go live. The Directive sanctions any practice able, or potentially able, to mislead or distort the behaviour of consumers because the information provided is for instance not complete, can be misinterpreted or can force consumers to perform purchases that otherwise they would not have carried out.
The law implementing the Directive is also relevant because – at least in Italy – it prescribes sanctions up to € 500,000 that can even increase if through the same conduct the advertiser performs a number of different breaches.
Also, the Directive introduced a so called “black list” of circumstances that are in any case unfair and therefore unlawful. Such black list for instance makes reference to the improper use of the term “free” in ads when consumers have to bear any kind of cost to enjoy the free service/product, including the circumstances where there is a mechanic or debiting/crediting of the price of the free product/service.
If you need to review the compliance of your next marketing campaign with Italian law, feel free to contact me.
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