GamingTechLAW

Italian Gaming Market: March/April Data!

noreply@blogger.com (Giulio Coraggio) — Fri, 25 May 2012 16:27:00 +0000

The Italian Gaming Authority, AAMS, published the data for March and April 2012 on the Italian online gaming market showing an increase in players' spending of 8.6% compared to 2011.

The turnover of the Italian online gaming market reached in the first 4 months of 2012 € 5.5 billion with players' spending of € 67.7 million. As occurred during the last year, poker cash games (€ 3.1 billion of turnover) and casino games (€ 1.4 billion of turnover) represent by far the major products, while the turnover of traditional online gaming products is facing a contraction.

This circumstance may be mainly due to the focusing of major operators and players themselves on the new products (i.e. cash poker and casino games). However, the future of the market might change in the near future. The launch of sportsbetting games not included in the official AAMS schedule, bets on virtual events and betting exchange games might render the .IT offering more interesting.

But the most awaited change relates to the introduction of online slots that are currently prohibited. AAMS has now adopted a more flexible approach authorizing games similar to slots as far as they do not reproduce "spins", but it is still unclear when the green light for the "real" slots will be given. Also, an additional interesting change will relate to the adoption of more flexible bingo regulations allowing licensees to offer the same types of games currently available on .COM platforms while the current regulations are very restrictive as based on land-based regulations.

I have heard from commentators that there is nothing new in the Italian market, but the above shows lots of projects in the pipeline. Stay tuned and, as usual, send an email to me, Giulio Coraggio, if you want to discuss.

Betting Exchange Decree Approved by EU

noreply@blogger.com (Giulio Coraggio) — Tue, 22 May 2012 22:18:00 +0000

The Italian betting exchange decree finally obtained the approval from the European Commission.

As previously reported the approval of the decree had been postponed to the 18th of May because of the detailed opinion filed by Spain. However, it seems that the green light from the EC has now arrived.

However, it is still unclear the future that this game will have in Italy since at the moment only two operators (Betfair and Microgame through Betdaq) seem to be interested in the offering of such game which is boosted by a taxation of 20% of gross revenues while fixed odd sportsbetting games are subject to a taxation of 2% to 5% of turnover increasing of a further 0.5 in case of offering of bets on events outside of AAMS official schedule (the Palinsesto).

Another factor which might make this game attractive (if confirmed) is the possibility for operators to rely on international liquidity while for all the other games and especially poker and bingo games operators are not allowed to allow their Italian players to play against foreign players. This internationally liquidity if introduced for betting exchange games might be the first step towards a major change in the Italian market allowing the sharing of liquidity at least among regulated markets like Spain, Denmark, France etc. for also other games.

We will see the future developments of the matter, in the meantime if you want to discuss about this topic, feel free to contact me, Giulio Coraggio.

Freedom for Blogs in Italy

noreply@blogger.com (Giulio Coraggio) — Fri, 11 May 2012 17:06:00 +0000

The Italian Supreme Court held yesterday that blogs cannot be qualified as newspapers and consequently shall not be subject to the relative registration and liability obligations.

This decision terminates a never-ending saga that saw the Court of First Instance and the Court of Appeal holding that blogs have to be enrolled in the Court registry as requested by Italian press law in relation to all press material and issued a fine of € 150 against the blogger that was the defendant in the dispute.

Indeed the previous decision had been highly criticised because risked to extend to bloggers the strict liability regime provided by Italian law for editors of newspapers whose compliance with the liability exemptions provided by the E-Commerce Directive has been subject of relevant debates.

The decision of yesterday might be deemed a milestone in the Italian jurisprudence and is the second good news for Internet service providers in a quite short term after the decision to the benefit of Google on their suggest search service. Indeed, it appears that a new approach is being adopted in the Italian case law which might make Italy a more attractive country for Internet operators.

Do you want to discuss the above? Feel free to contact me, Giulio Coraggio.

Google NOT Liable for Suggest Search Results

noreply@blogger.com (Giulio Coraggio) — Tue, 08 May 2012 08:05:00 +0000

We had reported in a previous post about the decision of the Court of Milan against Google for defamation arising from the usage of Google "suggest search" service. Interestingly, one year later the court of Pinerolo took a complete opposite view.

The case relates to an entrepreneur who found out that when his name was typed on Google search bar, the system was suggesting terms like "arrested" and "investigated" even if there is no information on the Internet about his involvement in a criminal proceeding. The claimant requested Google to remove the association between his name and such terms since this was defamatory, but Google responded that the removal of the association could not occur as the suggest search service works automatically on the basis of the frequent searches performed by users.

Google's view was shared by the Court of Pinerolo according to which the suggest search service shows "no more than that a certain number of users has recently questioned the search engine in order to know whether X was (or had been) investigated or arrested". Therefore this is an automatic system rather than a system controlled by people.

Furthermore the court held that the crime of defamation could not be triggered as:

1) there was no defamatory statement as the search is closer to a question rather than a statement;

2) there was no wilful action by Google or other users aimed at performing a defamatory action; and

3) the Google suggest search service was not providing any defamatory information as it was merely disclosing that some people searched for those terms.

Finally, according to the Court, Google is a mere hosting provider for the purposes of the E-Commerce Directive and therefore it cannot be held liable for the contents published by its users as far as it merely provides a technical feature without taking any active role in suggesting the terms to be associated to the words typed by users.

This decision is very interesting and follows the Decision of the Italian Communications Authority of not adopting a new notice and take down procedure and therefore it shows a new approach in the Italian case law with reference to the liability of Internet Service Providers.

Do you want to discuss the implications of such decision? Feel free to contact me, Giulio Coraggio.

Good News and Obligations in the Fiscal Decree

noreply@blogger.com (Giulio Coraggio) — Thu, 03 May 2012 08:46:00 +0000

Lowering of taxation for sportsbetting games, licenses for betting shops, dedicated bank account and further delays on the launch of live poker in the law of ratification of the so called Fiscal Decree.

A law just published on the Italian Official Gazette provides the following:

Sportsbetting Taxes: it has been removed the additional taxation for sportsbetting games if the payout is lower than 80% of the amount collected from players. Indeed, the previous regulations prescribed that under such scenario an additional tax equal to 20% of the gross difference accrued between the 80% threshold and the actual payout was due and for instance in 2011 for some operators the payout was 78% and therefore the additional tax was due.

Betting Shops: following the decision of the European Court of Justice on the Costa Cifone case, by 31 July 2012 a new procedure for the award of 2,000 betting shop licenses lasting until 30 June 2016 and awarded through an auction with starting price of € 11,000 will be launched but without any limitation in terms of territorial coverage.

Live Poker: the call for tenders for the award of live poker licenses has been postponed to 1 January 2013.

Dedicated Bank Account: licensed operators shall hold on dedicated bank accounts all the funds relating to expenses, economic obligations and financial proceeds relating to the games offered under the license. Based on the wording of the regulations such obligation operates in addition to the bank account dedicated to hold players' funds.

There are some good news and relevant new obligations which might have an impact on operators. As usual if you want to discuss about it, feel free to contact me, Giulio Coraggio.

Betting Shops and Virtual Events...Lots to Come!

noreply@blogger.com (Giulio Coraggio) — Wed, 18 Apr 2012 12:27:00 +0000

A law providing the award of 2,000 Italian betting shop licenses is expected to be approved in the next days and the decree regulating the offering of bets on virtual events in Italy obtained the approval from the European Commission.

Following the decision of the European Court of Justice in Costa Cifone case, in order to cure the issues raised by the ECJ, the Parliament has decided (if the proposal will be eventually approved) to set up a call for tenders in relation to the award of 2,000 new betting shop licenses by the 31st of June 2012. Such licenses will be valid up to the 31st of June 2016 and the minimum price for their award will be € 11,000. The purpose of this procedure is to convert the current betting shops operating with a foreign license into legally Italian licensed shops, but represents obviously an opportunity also for new entrants in the market. Likewise the decree regarding the offering of bets on virtual events that was under the review of the European Commission has been approved and therefore it is now expected to start the procedure for its coming into force, while following an opinion from Spain the approval of the decree on betting exchanges has been postponed to the 18th of May 2012.It is interesting to see how further new opportunities are coming up in the Italian market, if you want to know more about it, feel free to contact me, Giulio Coraggio.

Bets out of Palinsesto Decree to the EU

noreply@blogger.com (Giulio Coraggio) — Sun, 15 Apr 2012 21:55:00 +0000

The main issue of Italian sportsbetting regulations currently is that operators are allowed to offer only events and types of bets included in the official list issued by AAMS (the so called "palinsesto"), but this is going to change shortly as a consequence of a draft decree now notified to the European Commission.

The draft decree allows operators to offer both events different from those included in the palinsesto and types of bet relating to events included in the palinsesto but for which the palinsesto does not prescribe that type of bet and - unlike what ordinarily currently happens - prescribes that the operators themselves will certify the results of customised bets. In order to be approved to the offering of customised bets, operators shall submit to AAMS a technical document showing how they plan to certify events, pass a technical test and - in relation to each customised bets/types of bet - submit to AAMS the documentation describing it. Finally operators shall pay an additional gaming duty of 0.5% of the turnover generated by customized bets (on the top of the current taxation) as consideration for the administrative costs necessary for their management.

The major advantage of such decree will be that the competition among operators will not be limited anymore to the mere offering of the best odds, but will be extended to the events/types of bets so helping operators whose success is also based on their creative events/types of bets. However, it is worth it to mention that the authorizations required and the higher taxation may be a disincentive to their offering.

The European Commission will review the draft decree for 3 months and - if no comments are raised by the EU Member States and the EU Commission - the final version of the decree is likely to be adopted shortly after that. In the meantime if you want clarifications on that, feel free to contact me, Giulio Coraggio.

Lawyers Monday - Online gaming in Italy

noreply@blogger.com (Giulio Coraggio) — Tue, 10 Apr 2012 07:01:00 +0000

Health-related Websites & Privacy: Need to Know!

noreply@blogger.com (Giulio Coraggio) — Wed, 04 Apr 2012 17:42:00 +0000

The Italian Data Protection Authority has published guidelines on the processing of personal data on health-related websites which provide stringent requirements.

Websites, forum, blogs but even social networks that are dedicated to health-related issues provide advice, exchange of information and contain comments from users that in some cases can reveal very sensitive data about their health conditions and users need to be adequately informed of the risks of disclosing such data.

For this purpose the Italian Data Protection Authority has required that if a registration is required to the website, a privacy stratement is previously provided and specifically accepted by them mentioning therein, among others, which data are necessary to participate to the activities performed on the website and the term for which such data will be stored.

Also, regardless of whether or not a registration is required, users shall be notified with a warning informing them of the risks that they can face disclosing their sensitive data or third parties' sensitive data, including photos or videos, which can lead to their identification and whether their data are indexed or not by search engines and whether they are accessible only by the registered users of the website or by any Interner user. Likewise, users should be encouraged for instance to use nicknames and to be prudent in disclosing excessively specific personal data to avoid their identification.

It is good to mention that these guidelines do not apply to websites aimed at providing remote medical assistance dedicated to patients for which as reported in a previous post however other relevant privacy issues might arise.

Need more information on the above? Feel free to contact me, Giulio Coraggio.

Gambling Advertising Safe and Sound?

noreply@blogger.com (Giulio Coraggio) — Fri, 30 Mar 2012 08:33:00 +0000

We had reported of a law proposal aimed at introducing a complete ban on gambling advertising in Italy. However the latest good news are that more likely Italy will adopt an approach similar to the UK.

According to the latest news, the Italian Government is going to submit to the Parliament an law proposal within the next 30 days which rather than providing a complete ban on gambling advertising will prescribe:

time slots when gambling ads can be broadcast
the obligation to stress that games offer a mere "possibility" to win and
a list of places where gambling related billboards can be placed.

Also, operators are discussing the implementation of a self-regulatory code of conduct for gambling advertising which might reproduce the UK approach. However, the scenario is still uncertain and I will keep you posted, but as usual feel free to drop a line to me, Giulio Coraggio if you want to discuss the matter.

ICT in the Medical Sector: New Opportunities!

noreply@blogger.com (Giulio Coraggio) — Tue, 27 Mar 2012 20:54:00 +0000

A Law Decree introducing the so called electronic health record, online examination record and in general the digitalization of the medical sector is about to be ratified by the Italian Parliament.

This considerable change provides the adoption of the electronic management of health files through the usage of the electronic health record and the implementation of online booking systems for appointments. Moreover what is more interesting is that the Ministry of Health shall issue decrees providing the usage of mobile devices able to collect medical data, their communication to practitioners assisting patients, researchers and patients themselves.
Needless to add that such decree offers a tremendous opportunity to providers of cloud computing services that might be affiliates of pharmaceutical companies, but also companies active in other sectors (e.g. Google) whose services can be adapted to the needs of the medical sector.

However, given the processing of health personal data (and in some cases genetic data) through such technologies, their implementation will require the review of relevant privacy-related issues already discussed in a previous post and whose impact might even increase if the collected data are stored outside of the European Union e.g. in the case of non-European providers. Additionally, it might be useful to liaise with the Ministry of Health on the implementing decree to make sure that they do not prescribe unbearable regulatory restrictions.

An interesting conference organized by the University of Milan will cover the topic, but if you want to discuss about the legal boundaries to the launch of this project, feel free to contact me, Giulio Coraggio.

Apple's € 900K Fine Confirmed

noreply@blogger.com (Giulio Coraggio) — Fri, 23 Mar 2012 08:49:00 +0000

Apple's fine previous issued by the Italian Competition Authority has now been confirmed by the Administrative Court of Lazio Region.

As previously reported, Apple had been fined € 900,000 by the Italian Competition Authority because of the breach of regulations on unfair commercial practices (i.e. those previously named as misleading advertising) and in particular because:

Apple's warranty terms making reference to a one year warranty did not adequately informed consumers of their statutory two years warranty prescribed by the Italian Consumers' Code implementing the EU Directive on the Sale of Consumers Goods and
the information provided to consumers on the additional contractual guarantee (subject to the payment of further fees) together with the lack of information on the statutory two years warranty might mislead consumers that would be fostered to subscribe a guarantee whose scope was partially already covered by the statutory warranty.

The decision had been appealed but the Administrative Court of Lazio Region has now ratified the decision of the Italian Competition Authority.

This is a further confirmation that advertising regulations shall be taken into account not only in the review of advertising campaigns, but also in the drafting of Ts&Cs of consumer products. Indeed, this decision shows the need of a higher level of transparency with reference to consumers' rights in the Ts&Cs and I would not be surprised that companies will start reviewing their Ts&Cs as occurred back in 2005 when AOL and Tiscali had been sanctioned by French courts because of the unfair terms in their contracts.

Want to know more on the above? Feel free to contact me, Giulio Coraggio.

Check Out Your TV Ad!

noreply@blogger.com (Giulio Coraggio) — Wed, 21 Mar 2012 18:35:00 +0000

Lawyers' review of TV ads is in most of the case considered as an expensive waste of time, but in some cases it can lead to relevant savings.
It happens quite often that marketing managers call us complaining for the comments (issues) raised on their ready-to-be-launched TV ad just claiming that their "similar" had been previously approved and we cannot complain about it at this stage!
However, in a country like Italy where fines up to € 500,000 can be issued in case of misleading advertising practices and promotions not compliant with stringent regulations and even higher damages can be awarded in case of breach of intellectual property rights, such kind of issues should not be underestimated.

The Italian Competition Authority (AGCM) that has jurisdiction on advertising-related disputes is very active, and consumers and competitors can challenge a marketing campaign merely contacting the free number of the AGCM without the need to become a party of the proceeding. Moreover in sensitive sectors, like gambling for instance, the approach from the AGCM is even more stringent given the higher risk of potential damages for consumers.

Finally, also the consequences of a mere decision from the Self-Regulatory Advertising Court should not be underestimated since all the media companies are members of the Self-Regulatory Advertising Association and therefore an order of termination of a marketing campaign would be immediately enforced.

The approach we usually recommend to clients is to have at least marketing guidelines drafted by local lawyers for their marketing team and require a review from the legal department at least for major campaigns. Better to avoid risks than repairing them.

Want to share your thoughts on the above? Feel free to contact me, Giulio Coraggio.

Ban on Gambling Advertising?

noreply@blogger.com (Giulio Coraggio) — Tue, 13 Mar 2012 18:40:00 +0000

A law proposal relating to the possible ban of advertising practices in the gambling sector in Italy is currently under discussion.

This comes from a number of law proposals which are aimed at better protecting players introducing for instance measures for the blocking on transactions to non-Italian licensed websites, the increase of penalties against players gambling on non-Italian licensed platforms, the introduction of more stringent checks on shareholders of Italian licensed companies and their deals with tax heaven based companies etc. The different law proposals are currently reviewed and the Commissions of the Parliament are likely to shortly publish a new proposal merging the current proposals. Needless to say that a complete ban of advertising practices for gambling operators would mean a considerable damage for the entire market as the competition would be limited to the odds and pay-outs. Hopefully the Italian Parliament will start involving in the discussions persons that know the gambling sector and the discussions might lead to advertising gambling regulations that are closer to those adopted in the UK bearing in mind that Italian misleding advertising and unfair commercial practices regulations are already very stringent and provide fines up to € 500,000.

I will keep you posted, but in the meantime if you want to know more about that please contact me, Giulio Coraggio.

Gaming Conference Discloses Relevant Growth

noreply@blogger.com (Giulio Coraggio) — Wed, 07 Mar 2012 10:34:00 +0000

The gaming conference of the University of Milan disclosed a growth of 7% of the Italian online gaming market in 2011 driven by the launch of casino and cash poker games while the "traditional" games (i.e. sportsbetting, bingo, poker tournament and skill games) showed a reduction of 20%.

The Politecnico di Milano which is the Univerisity of Milan that each year publishes a report on the Italian gaming market confirmed the considerable growth of the market due to the new games and in particular by poker cash games that for instance in the month of December 2011 represented 57% of the market followed by casino games (that do not currently include slots) with 26% and traditional games with 17%.

These data show that the growth of the market depends on the offering of new games and the launch of online slots - hopefully occurring during the Summer 2012 - will represent the most relevant event of this year followed by the launch of bets on virtual events, betting exchange games and by the long awaited new bingo regulations providing operators with much more flexibility in the management of games.

An interesting factor raised during the conference is the need to fight against non-Italian licensed websites that still attract a relevant share of Italian players and the broadening of the offering of games might contribute to a reduction of the black market and also to those higher tax entries recently sought by the Italian Government.

Finally it was stressed that operators adopting an innovative approach (i.e. through new channels of communications, exploiting social media or focusing on niche games) have obtained a relevant market share in a short term confirming that there is still room for new entrants as far as they differentiate them from competitors.

The findings of this report should encourage operators to invest into the Italian market in 2012 that with a number of new types of games to be launched will face considerable regulatory changes and possible developments. Need more information on the above? Feel free to contact me, Giulio Coraggio.

What a Relief!

noreply@blogger.com (Giulio Coraggio) — Mon, 27 Feb 2012 10:37:00 +0000

Italian licensed operators have spent a very nice week-end, the frightening increase in the taxation for casino games, cash poker games and videolotteries has not been included in the so called fiscal decree approved last Friday.

We shall monitor the situation in the next months to see whether the Government will think again about it, but the time being the risk has been avoided.

Feel free to contact me, Giulio Coraggio if you want to discuss it.

Stanley Bet Case, A Victory for Who?

noreply@blogger.com (Giulio Coraggio) — Wed, 22 Feb 2012 09:27:00 +0000

During the last days everyone has been discussing about the "crazy" potential Italian gaming tax changes and the consequences of the decision of the European Court of Justice on the Costa Cifone case involving the Italian licensing regime. However maybe it was slightly missed the exact scope of the decision.
As background information Stanley Bet runs in Italy a very successful business model based on 200 agencies in the form of DTCs i.e. these agencies do NOT hold any Italian land-based or online gaming license issued by the Italian Gaming Authority (AAMS) and do NOT pay any Italian gaming taxes, but are mere Internet cafes that offer bets under the Stanley's UK gaming license. Mr. Costa and Mr. Cifone were the managers of two Stanley's DTCs to whom the offering of games without the required Italian AAMS gaming had been challenged.

Stanley has been fighting against the Italian gaming license regime for the last decade and surprisingly Italian license rules have always been drafted in a way allowing Stanley to properly set up their defense. In this specific case Stanley challenged the call for tenders of 2006 for the award of the so called Bersani gaming licenses and in particular the European Court of Justice held that the provisions of the Bersani call for tenders imposing on only new licensees a minimum distance between betting shops were actually protecting the market positions acquired by the already established operators and therefore they were discriminatory against other participants to the procedure and in contrast with EU principles.

Moreover, the European Court of Justice challenged the imposition of criminal penalties against persons (i.e. Mr. Costa and Mr. Cifone) offering bets that are linked to operators (i.e. Stanley) that were excluded from tendering procedure for the award of gaming license for reasons in contrast with EU principles as provided by Placanica case. Indeed, the court held that the decision on the Placanica case was issued 4 months after the deadline for the participation to the Bersani tendering procedure and therefore the latter had not "cured" the lack of compliance challenged in the Placanica case.

The good news is that a new tendering procedure for the award of new betting shop gaming licenses is expected to be launched shortly and in such circumstance Stanley will not in the position anymore to rely on the Placanica case…. Consequently their model of business might still have a short life in Italy.

Also, it is good to mention that the European Court of Justice in none of the contents of its decision challenges the compliance of EU laws of the obligation for operators offering games in Italy to hold an Italian remote gaming license. The scope of this decision appears to be limited to the peculiarities of Stanley Bet case since their exclusion from the tendering procedure of 1999 was found not to be compliant with EU laws in the Placanica case.

Operators other than Stanley and, as a consequence of the new tendering procedure, Stanley itself shortly, will find difficult to rely on this court decision. As a consequence of that, the current Italian online and land-based licensing regime remains unaffected after this decision especially after the implementation of the new rules on remote licenses last year that have put in place a fully EU-compliant regime.

It is good to say…lots of noise for nothing, but if you want to discuss about it. Feel free to contact me, Giulio Coraggio.

Tax Regime and Fight Against Foreign Websites?

noreply@blogger.com (Giulio Coraggio) — Tue, 14 Feb 2012 18:25:00 +0000

According to rumours the Government is planning to change the tax regime applicable to casino and cash poker games and to introduce stricter measures against the offering of games to Italian players through non-Italian licensed gaming websites.

The main changes might involve the tax regime for cash games and casino games switching from a 20% net profits regime to a 1% turnover regime so vanishing all the efforts performed to introduce a more reasonable tax regime.

This measure might be part of a major decree named the "Fiscal Decree" which among others might increase up to 1,000% of the amount bet fines against Italian players playing on non-Italian licensed gaming websites and up to € 200,000 the fines against entities (e.g. affiliate websites) advertising non-Italian licensed websites to the benefit of Italian players.

AAMS might be in the process of finalising the implement decree obliging banks, financial institutions and credit card companies to notify to AAMS the transactions performed by Italian players to the benefit of gaming websites included in the black list published on AAMS' website whose breach provides fines up to € 1,300,000 for financial institutions.

Most of the Italian licensed operators will not sleep well during the next days hoping that the tax regime will not be changes..., if you want to know more on the above, feel free to contact me, Giulio Coraggio.

Gaming Affiliates in Italy: Did you know about this?

noreply@blogger.com (Giulio Coraggio) — Tue, 07 Feb 2012 10:07:00 +0000

The regime applicable to affiliates under Italian gambling law has never been subject of thorough reviews maybe because of the difficulty to enforce Italian court decisions against foreign websites. However, such conduct is regulated and the applicable sanctions are considerably high.

The general principle is set forth in Law 13 December 1989, No. 401 prohibiting the advertising of gambling websites run without an Italian gambling license issued by AAMS or offering games that are reserved to the Italian State. The breach of this obligation is sanctioned with the imprisonment up to 3 months that is increased up to 1 year in case of advertising concerning gambling websites offering lottery tickets or similar games of chance of foreign countries.

Italian law prohibits the offering of games remotely without an Italian license issued by AAMS to people located in Italy and sanctions such conduct with the imprisonment up to 3 years. As a consequence of that, the above mentioned provisions have also been introduced to avoid any advertising practice involving non-Italian licensed websites directed to people located in Italy.

But what are the criteria of applicability of these provisions in the case of foreign websites? Italian criminal law applies the principle of territoriality which makes reference to both the place where the illegal conduct took place and to the place where the effects of such illegal conduct occurred. As a consequence of that because of the ubiquity of the Internet a foreign affiliate website that advertises non-Italian licensed websites might face the above mentioned criminal sanctions.

Despite the fact that there is no case law on disputes involving affiliates, the conclusions above are even more grounded if there is a version of the affiliate website in Italian. In such case, given that the Italian language is mainly spoken only in Italy, the affiliate website might be deemed to be "targeted" to Italian players and therefore falling under the scope of Italian criminal law.

The above is confirmed by the circumstance that a number of affiliate websites are in the blacklist of illegal websites published by AAMS and in relation to which Italian Internet Service Providers (ISPs) are obliged to implement filters preventing people located in Italy to get access to such websites.

This is due to the fact that affiliate websites are often used by non-Italian licensed gambling websites to circumvent the filters put in place by Italian ISPs through a banner which links to a website whose domain name is slightly different from the one of the main gambling website of the operator.

Indeed, despite the considerable efforts performed by AAMS to keep its blacklist up-to-date, operators change their domain name very frequently generating new domain names that are not listed in AAMS blacklist that are redirected to their main website. However, in order to notify the new domain name to players, they use banners published on affiliate websites.

This practice is even more risky for affiliate websites since they might be deemed to be contributory liable in the crime perpetrated by the operator. In such case the potential sanction would increase from 3 months or 1 year (depending on the games offered on the advertised website) to 3 years which is the sanction applicable against non-Italian licensed online operators offering games to people located in Italy.

Given the above, affiliate websites might become cautious in advertising to the benefit of Italian residents non-Italian licensed websites also because the checks on such websites might become more and more aggressive because of the pressure that Italian licensed operators (which now include most of the major gambling operators) are putting on AAMS to foster more stringent checks and actions against them.

Need to know more on the above? Feel free to contact me, Giulio Coraggio.

Privacy & Cloud Medical Databases

noreply@blogger.com (Giulio Coraggio) — Sun, 29 Jan 2012 09:40:00 +0000

The collection of medical personal data relating to health conditions of patients in cloud databases is recently becoming more and more frequent, but relevant privacy issues are triggered.

In particular, the Italian Data Protection Authority issued Guidelines on the Electronic Health Record and the Health File and Guidelines on Online Examination Records that set out considerable restrictions in terms of (among others) types of personal data that can be processed and purposes for which they are processed (which cannot determined at mere discretion!), information to the given to patients and consent to be collected from them and security measures to be adopted to preserve the corruption of data collected in the cloud database i.e. databases that remotely store data either uploaded by healthcare institutions or patients themselves. Same principles are applicable throughout Europe because of the recommendations issued by the European Working Party (an European data protection advisory body) on electronic health records. Given the potential sanctions applicable to the breach of privacy regulations in the different European countries, a thorough legal review of cloud medical databases is recommendable.

Need to discuss the above? Contact me, Giulio Coraggio.

Privacy Obligations: Life is Easier!

noreply@blogger.com (Giulio Coraggio) — Sat, 28 Jan 2012 16:15:00 +0000

"Documento Programmatico sulla Sicurezza" not required anymore! The Italian Government has approved the law decree aimed at simplifying a number of regulatory obligations including privacy obligations.

As part of a broad package of regulations that are intended to reduce bureaucratic obligations for companies, governmental authorities and consumers the Italian Government has also removed the obligation to draft the so called "Documento Programmatico sulla Sicurezza" i.e. a Privacy Security Document listing the privacy measures adopted by companies processing sensitive data through electronic means. This represented a very burdensome obligation for companies given to the level of detail required and therefore this is a very good news for companies. However, entities active in the Italian market should not underestimate privacy-related obligations because of this change. Indeed very relevant sanctions which include criminal penalties are applicable in case of breach of Italian data protection regulations.

Need to know more on the above? Feel free to contact me, Giulio Coraggio.

Betting Exchange and Virtual Events Bills to EU

noreply@blogger.com (Giulio Coraggio) — Tue, 17 Jan 2012 10:58:00 +0000

AAMS, the Italian gambling authority, has notified to the European Commission the draft decrees regulating betting exchange games and bets on virtual events.

These decrees have been long awaited from the approval of the so called Abruzzo Decree in 2009 that set out the tax regime applicable to both games which will be 20% of the gross profits with the peculiarity that, according to the current bill, in relation to betting exchange games the operator will be entitled to collect a commission not exceeding 10% which will be the tax basis. Also another peculiarity of betting exchange regulations (that on the contrary will not be required for virtual events games according to the current draft) relates to the certification of the gaming platform by an independent third party accredited with AAMS that will be required for such games as it is currently required for casino games, card games and skill games.

Both the draft decree on betting exchange games and bets on virtual events will allow the connection of the platforms which may be considerably relevant especially with reference to betting exchange games on Italian licensed platforms where only players with an Italian fiscal code can play and there might be issues connected to the number of players on the platform.

Finally it is worth it to mention that the remote gaming licenses recently awarded by AAMS (or in the process to be awarded) cover also the offering of betting exchange games and bets on virtual events, and operators will not need to apply for an additional license but only go through an additional technical approval.
The review by the European Commission will now last for 3 months and therefore it is likely that the regulations governing such new games will come into force by the end of the 2nd quarter 2012.
However, the good news are not over though, according to rumours, the time window to submit applications for an Italian remote gaming license that expired at the end of 2011 is about to be re-opened by AAMS and therefore late comers will shortly be entitled to apply for an Italian remote gaming license.

Need to know more on the above? Feel free to contact me, Giulio Coraggio.

Apple fined € 900K for Warranty Terms

noreply@blogger.com (Giulio Coraggio) — Wed, 28 Dec 2011 02:32:00 +0000

Apple has been fined by the Italian Competition Authority € 900,000 bacause of its warranty terms and the lack of information provided to consumers on its contractual guarantee.

As reported in a previous post, the Italian Competition Authority (AGCOM) - that is the entity in charge of disputes on unfair commercial practices and misleading advertising in Italy - had started an investigation on Apple's warranty policy.

As a consequence of such investigation the AGCOM held that:

Apple's warranty terms making reference to a one year warranty did not adequately informed consumers of their statutory two years warranty prescribed by the Italian Consumers' Code implementing the EU Directive on the Sale of Consumers Goods and
the information provided to consumers on the additional contractual guarantee (subject to the payment of further fees) together with the lack of information on the statutory two years warranty might mislead consumers that would be fostered to subscribe a guarantee whose scope was partially already covered by the statutory warranty.

Both conducts were deemed to trigger an unfair commercial conduct for the purposes of the EU Directive 2005/29/EC whose breach is punished with fines between € 5,000 and € 500,000. And therefore two separate breaches have been challenged to Apple and the sole reason why the second breach has been punished with only € 400,000 of fine is because Apple committed to adopt a policy to better inform consumers.

This decision is meant to become a ground breaking precedent in the sector as it shows the need for companies acting in the Italian market to localise their terms and conditions and to ensure the maximum level of transparency to consumers on their rights. Indeed the same principle applies not only to warranty terms but to any statutory consumers' right. Also since consumers' regulations are based on European Directives the issue is relevant across all the countries of the European Union. Companies should consider to review their terms and conditions in order to ensure their compliance with local consumers' laws bearing in mind that the fines for such breach are up to € 500,000.

It is likely that companies approaching the European market will become more cautious and prudent in reviewing the terms and conditions. This might be valid also with reference to software license agreements with consumers that quite rarely lead to disputes as to their limited value but can lead to considerable fines from the AGCOM.

Need more information on the above? Feel free to contact me, Giulio Coraggio.

Google's Victory Might Be A Short Success

noreply@blogger.com (Giulio Coraggio) — Mon, 26 Dec 2011 12:18:00 +0000

The Court of Rome on a case between Google and the Italian TV company, RTI, has issued an interesting decision on liability of Internet Service Providers (ISPs) whose beneficial effects might be considerably affected by the upcoming regulatory developments.

RTI had requested the court of Rome to prevent Google from publishing on its blogging platform, Blogger, the images of football matches broadcasted by RTI (through the affiliate company Mediaset) which would have obliged Google to monitor any video published in the future on Blogger in order to prevent a potential breach. However, the Court of Rome held that in case of prompt removal of illegal material following a detailed notification Google could not be deemed liable for contents published by its users and rejected the request to order Google to prevent the future publication of illegal contents by users.

The Court made reference to the recent decision of the European Court of Justice on the dispute Sabam vs. Scarlet and held that even if it was technically possible for Google to filter the contents published on its platform such obligation would have been in contrast with the non-monitoring principles for ISPs set forth by the E-Commerce Directive as implemented in Italy.Therefore Google can be obliged to remove following a notice but does not have to prevent the publication of illegal material.

But, what kind of notice is sufficient in order to oblige ISPs to remove the material? The current version of the Legislative Decree 70/2003 implementing in Italy the E-Commerce Directive requires a "judicial order" to trigger such obligation, but a bill that is currently under the review of the Italian Parliament would trigger this obligation as a consequence of a mere notice from an "interested party" without clarifying whether this has to be the right holder, what kind of information needs to be provided in the notice and whether the "interested party" can face fines in case of ungrounded notices.

Indeed, the risk might be of potential abuses through notices that are sent with the sole purpose of disrupting the business of a competitor. Also, it is not clear whether for instance all the challenged videos, contents or materials shall be listed (e.g. providing the relative link) in the notice and this might affect the position taken on the Yahoo! Case where the court held that the right holder is obliged to identify the infringing material.

2012 will be an interesting year for ISPs in Italy as these recent court decision coupled with the above mentioned bill and new notice and take-down procedure that is expected to be implemented shortly will keep a lot of attention from ISPs on Italy.

Need more information on the above? Feel free to contact me, Giulio Coraggio.

Securitization & Privacy: Not an Issue Anymore?

noreply@blogger.com (Giulio Coraggio) — Sun, 18 Dec 2011 11:16:00 +0000

The privacy-related issues in securitizations have always been a relevant issue. Indeed, Italian law provided that also the data of companies fell under the scope of data protection regulations with the consequential need to comply with privacy policy notifications towards thousands of creditors whose contract has been assigned as part of the secrutizations for instance. But things have now changed!

The Italian Data Protection Authority allowed companies to notify the transfer of agreements to assigned creditors through the publication of the privacy policy on the Italian Official Gazette, but this is not necessary anymore. Indeed, as part of the Law Decree 6 December 2011 No. 201, the data of legal persons (i.e. companies and associations) are not deemed to be anymore personal data and therefore are not subject anymore to Italian data protection obligations.

Therefore in case of securitizations where the assigned creditors are only companies, it will not be necessary anymore to comply with privacy-related obligations as to the processing of their data and therefore the obligation to notify the privacy policy to such entities will not be a problem anymore.

However, in case of processing of data relating to individuals, privacy law obligations still require the delivery to the individuals of a privacy policy compliant with the Italian Privacy Code. Therefore the matter shall be reviewed on a case by case basis and you will still need your favourite privacy lawyer, Giulio Coraggio.