Italian Communications Authority issues copyright enforcement measures against Telegram

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Ernesto Apa
Portolano Cavallo, Rome
eapa@portolano.it

Chiara Marchisotti
Portolano Cavallo, Milan
cmarchisotti@portolano.it

Right holders are turning to AGCOM to enforce their copyright online

On 6 April 2020, the Italian federation of newspaper publishers (FIEG) filed an urgent application requesting that the Italian Communications Authority (AGCOM) order that all digital editions of newspapers made available on a few public channels of the instant messaging platform ‘Telegram’ be removed. As an alternative, FIEG requested that AGCOM ordered that the access to the entire platform be suspended. The application was filed under the relevant provisions of the Regulation for the online protection of copyright (Regulation).^[1]

Following the opening of the investigation, Telegram spontaneously complied, at least partially. Content unlawfully made available via Telegram had been removed from all the channels reported by FIEG except one. As a result, AGCOM found that digital editions of newspapers at the core of FIEG’s application were almost entirely no longer accessible and that the number of users who subscribed to these channels had dropped sharply.

In its decision of 23 April 2020 (adopted via Resolution No 164/20/CONS, text published on 27 April 2020), AGCOM made it clear to be aware of the illicit dissemination of content occurring on Telegram and the serious damage this had caused the newspaper industry. In comment with the Resolution, AGCOM acknowledged that Telegram offers an instant messaging service that can also be accessed from the web. In addition to ‘traditional’ private individual and group chats, the platform allows to create and subscribe to public channels: these channels are freely accessible to any users and can be used to share any kind of content, including files of up to 1.5GB. This is where copyright-protected works can be made available to the public and, in the case in point, where the newspapers copies were illicitly shared and downloaded. However, AGCOM held that a blanket-order blocking access to all Telegram channels in Italy appeared disproportionate. For this reason, FIEG’s application was ultimately dismissed.

In a press release related to the decision, AGCOM took the opportunity to point out, that under the applicable legislative and regulatory framework (the national provisions of the so-called E-Commerce Decree,^[2] and of the Regulation) it lacks the power to order selective removal of content by operators based abroad. When online copyright infringement occurs outside of national borders (typically, when the servers hosting the website where the content is made available unlawfully are not located in Italy – as is the case with Telegram) AGCOM can only order access providers (ie, network operators) to disable access to the whole website.

In fact, in April 2020, the Undersecretary to the Presidency of the Council of Ministers with delegated powers for the publishing industry (Andrea Martella) called on AGCOM when he expressed the need for effective action to be taken against the illegal circulation of newspapers and magazines through instant messaging apps. In addressing questions posed by the government on how to fight online piracy, AGCOM suggested amending the current legislation in a way that would extend its powers and make its action effective in cases such as that of Telegram. Specifically, AGCOM urged that changes be made to Article 4(1)(a) of the E-Commerce Decree, with the aim of treating operators that offer Italian users information services using national numbering plans as if they were established in Italy. Similar amendments would finally allow AGCOM to order operators such as Telegram directly to selectively remove unlawful user-generated content.

Shortly afterwards, in a similar vein to what happened with FIEG, AGCOM initiated proceedings against Telegram at the request of the Italian publishers’ association (AIE). This led to the taking down of 26 channels where literary works were illegally being made available. In a press release of 29 May 2020, AGCOM again stressed its awareness of the extensive reach that a service such as Telegram has in the unlawful dissemination of content. The reported channels in this case had more than 350,000 subscribers and an endless catalogue of free, fully downloadable digital editions of books to choose from.

Based on the data collected in the latest research commissioned by AIE from IPSOS,^[3] it turns out that Telegram is the source of editorial content for 22 per cent of unauthorised users and that digital piracy costs the publishing sector an estimated €528m per year. Supported by these numbers, AGCOM highlighted the massive economic damage caused by the dissemination of unauthorised copies of literary work through the platform. Furthermore, combating piracy on Telegram is rendered all the more complicated by the complete anonymity of the users who set up and manage its channels, and by a system of cross-referencing to other channels specifically created to migrate users and content in case content is taken down from the site.

Nevertheless, for the second time in a matter of weeks the Russian platform agreed to cooperate with AGCOM. Once these second proceedings had been filed, Telegram replied within 24 hours, stating that it would block the reported channels and willingly comply with the demands advanced by AIE. According to the feedback from AGCOM offices, the reported channels are no longer active, and it appears that they have either been removed or their content erased.

In this sense, AGCOM emphasised that the Regulation is an important tool in the fight against online piracy. This is not only in terms of enforcement, which may require some legislative amendments as called for in the first case discussed above, but also via its function of moral persuasion, with a spontaneous compliance rate of roughly 30 per cent.

The debate over online content sharing providers and copyright infringement is growing

This is not the first time that rights holders have addressed AGCOM about similar instances against Telegram under the Regulation. As a matter of fact, irrespective of their outcome (dismissal of the instance) these proceedings have several significant implications for the different stakeholders involved, some of which have already stepped in to voice their positions. Political institutions and independent authorities have also joined the debate.

First, the cases in question expose the shortcomings of the Regulation when it comes to the online protection of copyright. Second, they push the government to take a position. As mentioned, the Undersecretary delegated to oversee the publishing industry reached out to the President of AGCOM (Angelo Marcello Cardani) to relay the concerns raised by publishers and demand prompt action. Additionally, the cases have triggered a debate on AGCOM’s enforcement powers in relation to the subject matter in comment. Both in the letter from President Cardani addressing the requests of Undersecretary Martella and in its press release concerning these decisions, AGCOM demonstrated that it is not tone-deaf when it comes to right holders’ requests; rather, it expressed concerns of its own regarding the limited powers it has against copyright infringers. AGCOM has also suggested ways to amend the current legislation to make the Regulation effectively applicable if copyright infringement is carried out through internet service providers (ISPs) operating from foreign locations, which is the case for most online piracy. Finally, it ushered the discussion on copyright infringement out of the stakeholders’ circuit and back into the centre of Italian public and political debate.

From a legislative standpoint, the effect of the above is likely to accelerate the implementation of the Directive on Copyright in the Digital Single Market,^[4] and generate other legislative proposals which would grant AGCOM more extensive powers in terms of enforcement against online piracy, such as the draft law proposed by MP Capitanio. Most recently, these initiatives have partially been superseded by emergency legislation (the so-called ‘Decreto Rilancio’),^[5] adopted during the Covid-19 pandemic. This law has finally extended AGCOM’s powers to protect copyright against violations which, until now, were out of its reach, such as digital piracy and particularly the illegal dissemination of content through social media and instant messaging platforms. Based on a newly passed provision (Article 195-bis), at the request of right holders AGCOM will now be able to order internet service providers who, even indirectly, use national numbering plans to provide their services put an end to the reported online breaches of copyright and related rights. In case of non-compliance, AGCOM will have the powers to impose an exemplary administrative fine on these ISPs, ranging from €10,000 up to two per cent of their turnover in the last financial year closed before the filing of the copyright infringement application with AGCOM.

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