ITALY Law and Practice Contributed by: Massimo Tavella, Jacopo Ciani and Barbara Mazzi, Tavella Avvocati Associati
ditiously upon notice in order to take them down; and • influencers and endorsers may be held personally liable, if they fail to disclose paid promotions or present misleading information to consumers. Liability can be administrative (eg, fines), civil (eg, damages) or, in rare cases, criminal (eg, fraud). 1.4 What Is Advertising? Under Italian law and the IAP Code, “advertising” has a broad definition. It encompasses any public mes - sage, in any form and through any medium, intended to promote the sale of goods or services, improve business goodwill or influence consumer behaviour. This includes traditional media (TV, radio, print), digital ads (websites, app, social media posts, in-feed units, paid search units, recommendation widgets, adver - game), and indirect forms such as product placement, native advertising or branded content. Even public relations materials, if promotional in nature, may fall under this definition. The broad scope means that content creators and brands must be vigilant about compliance, even when promotional intent is not the primary purpose. 1.5 Pre-Approvals Generally, a pre-approval is not required, except in specific regulated sectors (eg, pharmaceuticals, finan - cial services). Among its functions, the IAP Review Board is entitled to issue preliminary advice about whether a marketing communication actually complies with the provisions of the IAP. The opinion is provided under the request of the advertiser, and it is voluntary. After positive advice, the board commits to refrain from challeng - ing the approved marketing communication. 1.6 Intellectual Property and Publicity Rights General rules concerning IP rights and the right of publicity apply. In particular, IP rights are regulated in the Civil Code (Articles 2569–2574 concerning trade marks and Articles 2575–2583 regarding copyright), in the Intellectual Property Code (Legislative Decree 10 February 2005, No 30), and in Law 22 April 1941,
No 633 as far as copyright law is concerned. The right of publicity is disciplined in Article 10 Civil Code as well as in Articles 96–97 Law 22 April 1941, No 633. As a general rule, any use in commerce of third par - ties’ property rights must be authorised by the rights- holder. 1.7 Self-Regulatory Authorities The IAP (Italian Self-Regulation Institute for Advertis - ing) is the self-regulatory authority overseeing adver - tising practices in Italy. It enforces the IAP Code which applies to a broad range of actors involved in advertis - ing and commercial communication in Italy, including advertisers, advertising agencies and creators, media and publishers, digital platforms and influencers, hav - ing accepted the Code directly or by membership of a trade association. To more effectively ensure compliance with the sys - tem, members undertake to include in their contracts a clause involving acceptance of the provisions of the Code and the jury’s rulings. As a result, even non- members are expected to comply if they advertise in media channels or platforms that adhere to the Code. This ensures that the Code’s rules are widely applica - ble across the advertising industry. Complaints can be submitted by consumers, com - petitors, associations, or ex officio by the IAP Review Board if it identifies a possible breach of the Code. The jury, composed of independent legal and com - munication experts, examines the complaint. After an adversarial procedure where the advertiser is given the opportunity to present a defence, the jury issues a decision, which is usually made public and published on IAP’s website. While it cannot impose legal penal - ties, if the advertisement violates the Code, the jury can order its modification or immediate withdrawal. While its decisions are not legally binding, compliance is widespread and most advertisers comply voluntar - ily to avoid reputational harm and escalation to state courts. Indeed, failing to observe a decision of the jury may lead to a claim of unfair competition under Article 2598 of the Civil Code. 1.8 Private Right of Action for Consumers Consumers or consumer associations on their behalf can bring civil actions before ordinary courts if they
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