19
Italien, Teil 1/2, Aldo Levi
I. Questions of material competition law
1. The use of e-mail for advertisement (“spamming”)
a. Is there any obligation to mark e-mail advertisement as such?
There is no obligation in Italy to mark e-mail advertisement as such. Only the proposal of the EC Directive on the electronic commerce of 18.11.1998, at sec 7, establishes that member states shall introduce in their legislation that the unsolicited commercial messages through e-mail <so called ”spamming”> are identified as such, in a clear and not ambiguous manner, since the moment in which the addressee receives them.
Also the IIC Revised Guidelines on Advertising and Marketing on the Internet (1998 ed) (“IIC Guidelines”) (sec 6) have followed the same path.
With reference to the Italian legal system may we mention the Codice di autodisciplina pubblicitaria (“Italian Code of advertising self-discipline”) which established that "the advertising must always be recognizable as such”.
b. Is it allowed to send advertisement via e-mail with the consent of the addressee?
There is a recognized "custom" whereby commercial unsolicited messages through e-mail are prohibited <unless there is the consent of the interested subject>. However this custom does not seem to have the characteristics for being legally binding.
Along this line may we also mention the rules of Netiquette (see details at para I.6) one of which establishes that it is prohibited to transmit through electronic mail advertising messages or communications which have not been required in an express way (sec 9).
According to the EC Directive 97/7 spam mails may be permitted "only if the consumer does not declare to be explicitly contrary" (sec 10.2).
c. Which effect has the clear opposition of the user on the legality of spam mails?
Law no 675/1996 attributes to the interested subjects the right to oppose the treatment (use) of their own personal data for certain purposes, including the dispatch of advertising material (sec 13.1.e).
If then we think that spamming may cause damages to the receiver (even if these damages are difficult to prove and to quantify), it could be possible to consider it a tort and apply the relevant remedies.
d. Can access providers restrict the use of spams, i.e. by refusing to transfer these mails to the addressee?
From a technical view point it is possible to place filters on the server in order to avoid that the spam-mails arrive to the final user.
From a legal view point in order to protect the users from spam mails the access providers, which are bound by the Code of self-discipline called "Carta della garanzie di Internet" ("Charter of Internet guarantees") (see para I.6), are requested to insert, in the subscription contract, termination clauses which permit to interrupt the contract vis-à-vis those who do not comply with certain rules of correct behaviour (sec 13), including the prohibition to send spam mails.
Along this path may we mention that any violation of the rules of Netiquette and in particular "mail spamming" have to be indicated to the Italian Naming Authority and to the Italian Registration Authority through e-mail.
It will be the task of the Naming Authority to contact the responsible people as well as their providers following the relevant procedures.
e. How is the legal situation affected by the fact that the e-mail has been sent from abroad?
As we will see in para II.1.g. the general rule, in unfair competition cases, whereby the applicable law is that of the marketplace, has some exceptions, one of which is represented by cross - border telecasts (including advertising telecasts) which are subject to the law of the "broadcasting place".
The same "country of origin principle" applies in the case of advertisement through Internet.
Therefore all spam-mails should remain subject to the law of the country where the site of origin is located, unless the server has fraudulently constituted its site in some informatics heaven.
f. Are users allowed to send flame mails to the spamming company?
"Flame mails" constitute a reaction to spam mails: they are messages of complaint sent in the e-mails of the spamming companies in order to render them unusable.
An Author stated that in view of the fact that the users do not have a legal remedy against the spam mails, the flaming reactions, eventhough unlawful in the abstract, may be justified.
We have seen under d. above that a better alternative to flame mails is the possibility, adopted by various providers, to insert in the subscription contract a termination clause in order to interrupt the contract in case of spamming or other uncorrect behaviours.
2. The use of hyperlinks
a. Is it lawful to set hyperlinks to web-sites of competitors?
The user who makes a connection with a web-site usually gains access to an introductory page structured as a general directory, so-called “home-page”, where the contents and the services offered by the web-site are listed. Nearly all the advertising demand concentrates on such page which - being the main page and the guide to the web-site’s contents - is the one that Internet users mostly see.
It is now necessary to distinguish between "deep linking" and "surface linking": the former exists whenever the "hypertext-link" refers directly to a certain page inside another web-site, without going through the home-page which identifies the web-site’s owner; on the contrary the latter exists whenever the link makes a simple connection with another web-site, without suppressing its home-page.
Here we just analyze the problems of “surface linking”, reserving at point c. the exam of “deep linking”.
It is however necessary an introduction. Some scholars think that every entity which joins the net implicitly consents that a surface link is set to its site by a third party.
Moreover, even if such an implied licence is admitted, for the lawfulness of surface linking it is also necessary that this link is displayed on one’s own web-site “in a correct and balanced way, so as to avoid possible confusion in the public about an association between the two entities and damages to the interests of the linked entity”. Therefore “surface linking” is lawful provided that it is not used in an improper way, that is so as to disparage the owner of the linked web-site, or its products, or to make the users to believe that a special connection <between the two entities> exists.
Possible improper manners can be repressed according to the law of unfair competition (sec 2598 of the Italian Civil Code) and to the ones protecting trademarks.
It is necessary to inquire whether comparative advertising by means of linking is admitted or not. The issue particularly regards direct comparative advertising (that is the one which explicitly identifies a competitor or the goods or services it offers), which has been generally considered unlawful. On the other hand EC directive 97/55/CE has expressly permitted it, upon (inter alia) the following conditions: i) any risk of confusion between the advertiser and a competitor or between the compared trademarks is avoided; ii) the advertising does not cause disrepute or disparage of a competitor’s trademarks, goods, services or business; iii) no undue advantage is derived from the reputation of another’s trademark and iv) one’s own product or service is not presented as an imitation or reproduction of the genuine product or service.
As surface linking is lawful provided that it is not used in an improper way, if the direct comparative advertising carried out by means of such link would cause one or more of the above mentioned inconveniences, it would principally amount to unfair competition by means of disparage or appropriation of qualities (sec 2598 no. 2 of the Italian Civil Code). The same principles will be applicable to the direct comparative advertising carried out by means of “deep linking”, specifying that the risk of unlawfulness could increase in view of the fact that the home page has been skipped and the identification of the provider has been hindered.
b. Which effect has an express statement of the competitor prohibiting or restricting hyperlinks to his homepage?
The owner of a web-site is usually considered to be in a position to prevent a third party from making a link with his own site through keys, passwords or other technical instruments.
Some scholars – also on the ground that the possibility to create a link is based on an implied licence – think that the provider who wishes to prohibit a third party from linking can also simply declare it through a "disclaimer" which would have the purpose to revoke the implied licence.
On the contrary some scholars deem such disclaimer legally irrelevant since a) it clashes with the theory according to which linking, “being a fair use of the net”, is permitted without consent and b) is not binding, being unilateral.
c. Are hyperlinks supposed to refer to the main home page?
As said under a. above deep linking skips the home page, that is the introductory page of another’s site. The harmful potentiality of deep linking shows itself fully: as a matter of fact, by means of such skip it prevents from seeing the sponsors of the linked site, causing a loss of advertising revenue (sec 2598 no. 3 of the Italian Civil Code). On the other hand the site which has made the link benefits remarkably from it; in fact, by avoiding to pass through the various, often redundant, introductory pages, the tracing of information results far more quick and fruitful.
Moreover, in view of the fact that the deep linking prevents from identifying the provider, users can be induced to believe that the information and related service are supplied by the linking site, and this would result in a serious risk of confusion and deviation of customers as well as in an unfair and serious taking advantage of another’s activity according to sec 2598 nos 1 and 3 of the Italian Civil Code.
Nevertheless deep linking should be considered lawful in case of adoption of information mechanisms such as to enable the users to fully identify the linked site and to prevent the risk of association with the linking one. Lacking such mechanisms, deep linking is deemed unlawful.
On the contrary some authors think that the space for the admissibility of deep linking is wider. This opinion is founded on the circumstance that the user’s possibility of freely "browse" in the net, choosing his own course within a site or a document, constitutes the peculiarity of the net.
These authors also point out that, if the link increases the reputation of the linked site, one should consider the possibility of offsetting the advantages with the disadvantages ("compensatio lucri cum damno").
d. Are there legal restrictions as to inline linking (i e the use of frame technology in a way that the user has the impression to read a specific homepage without noticing that he has already been linked to another homepage)?
Framing is a special form of linking. By means of such system the user, who makes a connection with a site and there starts up a link, will be connected with the page of another site, but said page (unlike what occurs in a generic linking) shall be displayed within the frame of the first site: therefore the advertisements placed on the framing site shall continue to surround the linked page and the following ones.
Very often the framing site, so-called "framer", has not its own contents, but only exploits the contents of others’ linked sites; its source of profit is the sale of the advertising space placed on the sides of the frame where the contents of the others’ sites are displayed.
The harmful potentiality of framing is evident and such as to make the link unlawful also in the case of surface linking; in fact, also in such case the presence of the frame, with the framer’s name, on the one hand it induces the users to assume an association between the two entities and perhaps to deviate them in violation of sec 2598 no. 1 of the Italian Civil Code and on the other hand it amounts to "concorrenza sleale parassitaria" (parasitical unfair competition) (sec 2598 nos 2 and 3 of the Italian Civil Code).
3. Limitations for online marketing of specific products
a. Are there any restrictions for the online marketing of tobacco products?
The "advertising of all kind of national or foreign tobacco products is prohibited" (sec 8 of Law Decree no 4 of 10.1.83 converted into Law no 52 of 22.2.83).
Sec 1 of the Ministerial Decree no 425 of 30.11.91 includes in the absolute prohibition of television advertising of cigarettes and of any other tobacco product also advertising which is carried out indirectly i.e. by the use of names, trademarks, symbols or other characteristic elements of tobacco products when said use, in view of the forms, modalities and means, is such as to pursue an advertising purpose.
With regard to sponsored programs sec 8 para 14 of Law no 223 of 6.8.90 provides that programs may not be sponsored - neither by television or radio - by physical or juridical persons whose main activity is the production or sale of cigarettes [or of other tobacco products, spirits, medicines or the rendering of medical treatments available only by prescription], nor if the sponsorship is made by subjects who have acquired a right on the same trademarks by virtue of licence or similar agreements.
b. Are there any restrictions for the online marketing of alcohol?
According to sec 2 of the Ministerial decree no 425 of 30.11.91 television advertising of alcoholic drinks must not:
a) be expressly addressed to minors and particularly show minors who are consuming such drinks;