Several companies belonging to Comcast Corporation, including the film major NbcUniversal, have been fined €14.3 million by the European Commission for restricting merchandising sales of products related to films such as Minions, Jurassic World and Trolls within the European market.


The EU Commission’s investigation phase:
In June 2017, the Commission launched an antitrust investigation regarding certain licensing and distribution practices of NbcUniversal to assess whether it had unlawfully prevented licensees and distributors from selling freely, within the EU single market, NbcUniversal brand products for the production and sale, including Minions, Jurassic World, Trolls and other NbcUniversal films.
EU Commission’s investigation found that NbcUniversal’s non-exclusive licence agreements infringed EU competition rules because they contained, in particular, clauses limiting out-of-territory sales to allocated customers, as well as online sales, with the obligation to pay the revenues of those sales to the licensor. NbcUniversal also obliged licensees to impose these sales restrictions to their customers, encouraging compliance with the same, also through audits that could lead to the termination or non-renewal of licence agreements.
The Commission concluded that NbcUniversal’s illegal practices, which have been in place for more than 6 and a half years (from 1 January 2013 to 25 September 2019), have partitioned the Single Market and prevented licensees in Europe from selling products across borders and between customer groups, to the ultimate detriment of European consumers. Executive Vice President in charge of competition Margrethe Vestager said: “These restrictions meant that shops could not freely choose which products to order from different European distributors. A department store in Spain could not sell pyjamas with E.T. because the Belgian manufacturer of those pyjamas was prohibited from selling in Spain. The extra-terrestrial had managed to reach Earth but was stopped in Spain due to a contractual restriction. Meanwhile, a teenager in Sweden could not buy a T-shirt with the character from the film “The Big Lebowski” online. Thus, because of these restrictions, consumers lost the possibility to choose, maybe even at lower prices”.
Vestager noted that the Commission’s 2017 investigation into e-commerce markets found that territorial restrictions had increased both in contracts for the sale of consumer goods online and in contracts for the licensing of digital products. For this reason, fighting against such anti-competitive restrictions has become a priority for the Commission.
Indeed, as stated by Vestager, the total amount of fines that the Commission has imposed on companies for creating barriers to cross-border trade in the single market amounts to EUR 184 million since May 2017 (only last year there have been two significant convictions against two major companies for EUR 12.5 million and EUR 6.2 million).
This operation is linked to other EU Commission’s activities, such as those to monitor effective compliance with the Geoblocking Regulation (EU) 2018/302, which aims to remove unjustified geographical restrictions on online shopping.

The cooperation of NbcUniversal:
It must be acknowledged that NbcUniversal cooperated with the Commission, beyond its legal obligations, by acknowledging the infringement and providing additional evidence to complete the investigation and waiving certain procedural rights which led to administrative efficiencies.

The sanction
The fine was calculated on the basis of the Commission’s 2006 Guidelines (see taking into account, in particular, the value of sales relating to the infringement, its gravity and duration. However, the cooperation of NbcUniversal resulted in a 30% reduction of the fine, which was then set at €14,327,000.00.

Action for damages
Without prejudice to the sanction of the European Commission, there remains the right for all persons affected by the conduct of NbcUniversal to claim damages before national courts. The Commission has in fact recalled that, according to the case law of the Court of Justice and Council Regulation No. 1/2003, a Commission decision constitutes binding proof that the conduct took place and was unlawful.

The described developments demonstrate once again the value of a system of continuous verification of contract assets, especially with regard to licensing agreements, so that European legislation protecting competition in the free market as well as the recent geoblocking regulation is respected.

Margherita Stucchi and Tankred Thiem



On January 13, 2020 the Council of Ministers approved a draft Statutory Provision to fight the practice of “parasitic advertising” (commonly known as “ambush marketing”), i.e. the illegal association of a third party company trademark to an international event, for the mere purpose of exploiting its resonance in the media and without incurring sponsorship costs. This is the first attempt by the Italian Legislator to regulate the phenomenon in an organic manner (and not for individual events), also providing for administrative fines to be directly applied by the Italian Competition Authority (AGCM).


Ambush marketing: definition of the phenomenon
The phenomenon of “ambush marketing” has been defined as the undue advantage acquired by the unfair competitor who unlawfully associates its image and brand to an event of particular media resonance, without being linked by sponsorship relationships (or similar) with the organization of the event. In this way the unfair competitor takes advantage of the media exposure of the event without bearing the costs, with consequent undue hooking up and negative interference with the contractual relations between the event organizers and authorized parties.
According to the doctrine (1), the ambush, planned and conducted by the unfair competitor, can be carried out in the following different ways:
i. “predatory ambush” or “ambush by association”, consisting of association with the event through the unauthorised use of distinctive or evocative signs of the event, or through indirect recalls;
ii. “insurgent ambush”, through the implementation of surprise initiatives close to the event;
iii. “saturation ambush”, due to the intensification of the unfair competitor’s promotional activities until all advertising space left free by the official sponsor is saturated.
Far from being an exhaustive and organic classification, so far the “ambush marketing” phenomenon (and its various practical applications) has found protection in the Italian Courts on the basis of the legislation on unfair competition pursuant to Article 2598 no. 3 of the Italian Civil Code as general professional misconduct of the unfair competitor who parasitically exploits the advertising of others (also as an infringement of Legislative Decree no. 145 of August 2, 2007) (2). With respect to the rules of self-regulation in the field of advertising, the case is frequently referred to as unfair, misleading and in any case clearly parasitic advertising messages (articles 1, 2 and 13 of the Advertising Self-Regulatory Code) (3).
In the past ambush marketing has had temporary regulations that expired at the end of the single event for which such regulations were issued (among these see Law no. 167 of 17 August 2005 issued in view of the “Torino 2006” Winter Games).

The forecasts included in the draft Statutory Provision
For the first time in Italy, the Legislator intends to regulate in an organic manner the phenomenon of ambush marketing, through the creation of a specific administrative violation under the supervision of the Italian Competition Authority (AGCM), which may apply fines up to Euro 2.5 million, without prejudice to other provisions in force (civil and criminal).
However, the draft Statutory Provision at stake intends to regulate only certain types of conduct that are strictly defined as illegal and limited in scope and time.
Concerning the subject matter, the prohibited conducts – limited to sporting, trade fair or entertainment events of national or international importance – includes the following:
• to create an indirect link between a distinctive sign and an event likely to mislead the public about the identity of the official sponsors;
• to state in your advertisement that you are an official sponsor of an event, without being one;
• promotion of a distinctive sign by any action likely to attract the public’s attention, not authorised by the organiser, which is carried out during an event or in places adjacent to the event;
• to sale and market products or services that are also partially marked with an event logo or other distinctive signs likely to mislead or create the impression of an indirect connection with the event.
Excluded from unlawful conducts are those carried out in performance of contracts concluded with individual athletes, teams, artists or participants in protected events, so as not to frustrate the sponsorship contracts signed by these parties (with clearly) anti-competitive effects.
As for the time’s limitation, it is expected that the prohibitions will operate from the ninetieth day before the official start date of the relevant events until the ninetieth day after the official end date of the events themselves.

The draft Statutory Provision at stake has been openly developed in view of the European football competition “EURO 2020” – which will include some matches of the tournament also in Italy – in order to clarify what the Legislator has defined as “grey areas” in the competitive protection against parasitic advertising. The intention seems certainly commendable given that the Legislator, for the first time, intends to typify the conduct considered illegal, providing an additional tool to repress illegal competitive conducts that are often not sanctioned because they occurs in many forms and, many times, considered extraneous to traditional competitive violations. However, the Legislator’s tendency to increasingly entrust independent administrative authorities (such as AGCM in the present case) with important tasks could present disadvantages, as, on the one hand, the judicial guarantees are lower (compared to traditional appeal to the Courts) and, on the other hand, adequate resources are not provided for enforcement and thus the effectiveness of the action might be frustrated.
At this stage we shall wait for “EURO 2020” to verify if the measures provided by the Draft Law scheme here in comment will be able to “unmask” the advertising ambushes that – certainly – will be carried out during the competition.

(1) Among others see UBERTI, Concorrenza sleale – l’Ambush marketing come illecito anticoncorrenziale, in Giur. It., 2018, 10, 2159.
(2) Among others, see the decisions of the Court of Milan, December 15, 2017 and January 18, 2018, both in Foro it. 2018, 7-8, I, 2528.
(3) In particular, see IAP ruling no. 052/2014 of July 8, 2014 in AIDA 2016, 1735.

Alessandro Bura



With judgment no. 6734, published on February 12, 2019, the Italian Supreme Criminal Court ruled on the requirements for criminal protection for databases protected by sui generis law.


The fact
In the case examined by the Italian Supreme Court, the data contained in a well-known site concerning judicial auctions for real estate had been extracted and reused by a different operator, active in offering to the public of consumers services and consultancy for the purchase of real estate in judicial auctions, through publication on various websites. The material consisted of photographs, floor plans and files, the latter created by the judicial auctions site, showing the main characteristics of the properties subject to enforcement proceedings.

The application of Articles 171-bis and 102-bis of Law No. 633/1941 by the Italian Supreme Court
The Court of Lucca, before which the case was appealed, held that the conduct described above shall be considered punishable under Article 171-bis of Law no. 633/1941.
It should be noted that this provision punishes conduct committed in violation of Articles 64-quinquies and 64-sexies and Articles 102-bis and 102-ter of Law no. 633/1941. Article 64-quinquies provides for a series of exclusive rights of the author of the database, if it qualifies as an intellectual work, and in particular the rights of reproduction, translation or adaptation, distribution to the public, presentation, demonstration or communication to the public, transmission by any means or in any form. Otherwise, Articles 102-bis and 102-ter grant to the database maker- even if referred to a non-creative database – the right to prohibit the extraction or reuse of all or of a substantial part of the database, if the maker has made a significant investment in the constitution of the database, of a qualitative or quantitative nature.
In the present case, the Court before which the appeal has been filed, held that the conduct of republishing the data concerning judicial auctions was punishable under Article 171-bis of Law No 633/1941, since it was suitable for integrating the case of extraction or reuse, in order to make a profit, of all or of substantial parts of the contents of a database. Therefore, the Court of Lucca had confirmed the preventive seizure of the web site containing the data extracted and reused without authorisation, by means of the shoutdown of the web site and by blocking the accounts referable to the owner of the web site.
The basis of the crime in dispute had therefore been based on the protectability of the database made up of the data collected at the judicial offices and organized exclusively, through the activity carried out by the party offended by the crime. The circumstance that the activity in question was complex, and therefore required a significant investment, had indeed ensured that to the offended party was attributed the status of creator of a database, in accordance with previous decisions (1). According to the Court of Lucca, the extraction of the data contained in the information sheets produced by the offended party would also have compromised the efficiency of the advertising assignment commissioned by the public body, reducing the number and quality of access to the official website, given the unauthorised access and therefore liable to cause unjustified prejudice.

The opinion of the Court of Cassation
The defendant contested the qualification of the offended party as a database maker. According to the appeal, the web site of the offended party is merely a form of primary and obligatory advertising under Article 490 of the Italian Code of Civil Procedure. In particular, it was pointed out that the offended party is not the author of the public data published on its website, but only the person in charge of the publication of data already present on the Portal of the Ministry of Justice (for example, the order of the judge, the estimate report and the notice of sale of the professional delegated) and “in any case without any right of exclusivity”. Therefore, there is a lack of legitimacy to invoke the protection provided by copyright law.

The requirement of creativity of the work according to the Supreme Court
The Supreme Court of Cassation held that the claim brought by the defendand was grounded, stating that the archives (electronic and paper) cannot be qualified as creative works, if a sufficient degree of creativity cannot be found in them, to be identified in the activities of selection and/or disposition of data. According to the Court, there are two different notions of creativity, “an objective one tending to consider that a work is creative which is objectively characterised by original and innovative elements such as to distinguish it from any other pre-existing work, and a subjective one according to which a work which has the personal imprint of its author should be considered creative”. For the Supreme Court, in line with its orientation (2) and in accordance with supranational case-law (3), the subjective notion must be considered preferable, since “the object of protection is not necessarily the idea in itself, which can be the basis of several works of genius, but the particular form it takes regardless of its novelty and the intrinsic value of its content”. On the basis of this, the Supreme Court ruled out the possibility that the database of the offended party was provided with the degree of creativity necessary to qualify it as a work of the intellect, since there was no creative activity traceable in the operation of selection and/or disposition of data.
As already anticipated, the non-creative databases can benefit, in civil matters, the protection – defined by the Court itself as a “parallel track of protection” with respect to the traditional one, concerning the database – provided for by Articles 102-bis and following of Law No. 633 of 1941. The rationale of the provision is to offer protection to the “maker”, who has sustained significant costs for the constitution of the database, independently from the protectability of the latter from the point of view of copyright. In the present case, the Court stated that “that right is independent from any copyright in the database […] and is totally independent of its creative or original character”.
According to the Court, however, the identification of the offended party as the maker of a database, and therefore the beneficiary of the sui generis protection granted by art. 102 bis, “is in no way equivalent to grant to the maker the protection typical of copyright law, including both the instruments granted in civil law in relation to moral rights and economic use, and the criminal cases provided for in criminal law by art. 171…”. In the opinion of the Court of Cassation, therefore, creativity would be an indispensable requisite for the recognition of criminal protection for all intellectual works and therefore not only for creative databases, but also for non-creative ones, with the consequence that the maker of a sui generis database could not benefit from the criminal protection of copyright law.

From the interpretation adopted by the Supreme Court on the requirement of creativity in the field of databases, there is a clear separation between the sui generis protection provided to the maker and the typical protection afforded by copyright to creative databases. Therefore, the protection including the criminal cases referred to in Articles 171 and following of Law No. 633/1941 is not, according to the Supreme Court, likely to be applied to databases which lack the requirement of creativity. This conclusion, however, appears to be in contrast with the letter of Article 171-bis of Law No. 633/1941. In fact, this provision regulates in criminal proceedings both copyright violations (and therefore creative databases) and violations of the sui generis right, as can be inferred from the simple reading of Article 171-bis, paragraph 2. The rule, in fact, when defining the material object of the crime, operets a reference as it punishes both the conduct committed in violation of the provisions of Articles 64-quinquies and 64-sexies, and the conduct committed in violation of Articles 102-bis and 102-ter.

(1): In particular, Trib. Roma, judgment no. 48121, 19 September 2013, in Foro Italiano 2014, 14, 11, 1, 3340, where it was held that: “In the present case, the elements acquired must be considered to be integrated with the case in point, which constitutes the related law pursuant to Article 102 bis of the Italian Civil Code, and indeed the applicant company, as a party operating in the field of advertising services for judicial auctions, carries out a complex activity, divided into several stages of processing made necessary also by the obligation to comply with the criteria and standards established by primary and secondary regulatory sources. […]. The complexity of the activity described above undoubtedly requires the preparation of adequate instrumental equipment and qualified personnel and therefore requires significant investments in terms of time, workforce and financial resources”;
(2): See Cass. civ. sez. I, 11.08.2004 n. 15496 in database online Pluris;
(3): See European Court of Justice, 1.3.2012, caseC-604/10 in AIDA 2012, 1464.

Valentina Cerrigone and Alessandro Bura



With judgment no. 8474/2019, the Administrative Supreme Court recognised the lawfulness of automated administrative procedures and indicated their limits and criteria. Furthermore, by binding the lawfulness of the algorithmic decision-making to the transparency of the automated procedure, the judgment opened a new scenario between the PA and companies owning intellectual property rights on software.


The Administrative Supreme Court returned to the question of algorithmic decision-making in the administrative sector with judgment no. 8474/2019 filed last 13th December 2019. The Administrative Supreme Court confirmed its position expressed in judgment no. 2270 of April 2019, expanding its argumentation and extending for the first time the possibility of algorithmic decision-making also to PA’s discretionary activities, provided that certain conditions are met.

The case
The present case concerned the adoption by the Ministry of Education, University and Research of an extraordinary recruitment plan (referred to in Law No 107/2015) entrusted to an algorithm, as a result of which the assignments and transfers of suitable teachers were calculated.
The outcome of the national mobility procedure, implemented by Ministerial Order no. 241/2016, was opposed by the teachers who had been placed in Phase C of the abovementioned extraordinary recruitment plan. Specifically, the applicants contested the outcome of the procedure carried out on the basis of an unknown algorithm, as a result of which transfers were ordered without taking into account the preferences expressed by the teachers.
This procedure was declared unlawful in first instance by the Regional Administrative Court of Lazio, because considered to be in clear contrast with the criteria regarding the use of Information Technology in administrative procedures.
The judgment was appealed by the Ministry of Education, University and Research before the Administrative Supreme Court, which confirmed the decision of the Regional Administrative Tribunal based on a different motivation.

The decision of the Administrative Supreme Court
The Administrative Supreme Court confirms the lawfulness of algorithmic decision-making in the public sector and set out in detail its limits and criteria.
The potential of the digital revolution – ASC remarks – must be exploited to ensure the efficiency and cost-effectiveness of Public Administration, also in light of the principle of good performance under Article 97 of the Constitution. These requirements must, however, be balanced with other fundamental principles of the administrative procedure, including the principle of transparency.
Among the elements of guarantee for the lawful use of the algorithm in administrative procedures, the Administrative Supreme Court mentioned:
(a) the full knowability of the algorithm used and the criteria applied;
(b) the imputability of the decision to the body of the PA holding the power, which must verify the logic and lawfulness of the choice and results delegated to the algorithm.
Thus, the judgment extends the PA’s responsibility to the verification of correspondence between the algorithm and the underlying legal rule. In order to be able to verify that the criteria, assumptions and outcomes of the robotized procedure comply with the requirements and purposes established by law, the algorithm must be knowable and comprehensible in all aspects: from the authors to the procedure used for its elaboration, to the decision mechanism including the priorities assigned in the evaluation and decision-making procedure and the data selected as relevant.
In the case at hand – ASC concludes – the Administration had postulated a coincidence between legal requirements and the algorithmic operation, which must always be demonstrated at a technical level and in relation to the concrete case, since the impossibility of understanding the functioning of the algorithm would result in an unlawful procedure.

A new scenario for IP rights holders
According to the above-mentioned decision, the relationship between software companies and Public Administration must be based on principles of transparency. Consequently, companies could not claim any confidentiality over the algorithm. The judgment is clear on this point: “companies’ claim for confidentiality could not be taken into account, since by placing these instruments at the service of the public power, they accept all the consequences in terms of transparency”.
It should be also noted that in a more recent case the Administrative Supreme Court stated that the holder of technical secrets is a counter-interested party pursuant to Article 22, paragraph 1, letter c) of Law no. 241 of August 7, 1990, since he holds an interest in contrast to those who request access to the algorithm in order to verify its correct functioning. The position as counter-interested party is justified because, in the case described, the disclosure of the algorithm can cause harm to the IP rights holder (see Administrative Supreme Court, division VI, judgment no. 30 of 2nd January 2020, in banca dati online De Jure).
These judgements open a new scenario for companies holding intellectual property rights in software and raise several questions concerning possible measures to guarantee confidentiality of technical secrets in administrative procedures. The fact that the algorithm must be knowable and comprehensible does not, indeed, result in a loss of copyright. More complex is the case of know-how, where the asset to protect is precisely secrecy.

Camilla Macrì and Luigi Goglia



With sentence no. 261 of January 10, 2020, the first instance Regional Administrative Court of Lazio, first section, partially confirmed the fine of ten million of euros inflicted by the the Italian Competition independent Authority to Facebook for the adoption of a commercial practice considered unfair, halving it to five million of euros and recognizing the commercial value of personal data, whose economical exploitation constitutes a remuneration for the service offered by the social network.


The event
The Administrative Court ruled on the appeal filed by Facebook Inc. appealing a decision of the Italian Competition Authority which, in December 2018, had jointly fined the companies Facebook Ireland Ltd. and its holding company Facebook Inc. for violation of the Consumer Code, imposing two fines of five million of euros each for the two censured behaviours.
The Authority’s decision concerned two conducts deemed, respectively, to be deceptive and aggressive towards consumers.
The first condemned conduct concerned the famous slogan “Sign up. It’s free and always will be” contained in the Facebook login and registration page, which emphasized the free nature of the service without however adequately informing users of the collection and use, for commercial purposes, of personal data provided by them. This practice was therefore considered misleading, as it did not allow an informed choice of the consumer, who was not made aware with sufficient immediacy and accuracy of the remunerative purposes underlying the provision of the social network service.
The second conduct condemned by the Competition Authority concerned the mechanism of transmission of personal data generated by users from the platform to third-party apps and websites and vice-versa. According to the Authority, Facebook was implementing an aggressive practice aimed at improperly conditioning the users of the service to the transmission of their data from Facebook to third party websites or apps, and vice-versa, for commercial purposes, through the adoption of a mechanism of preselection of the widest consent to data sharing. Users, in this way, would be inadvertently influenced to maintain the pre-selected choice made by Facebook.

The Court’s decision
The Regional Administrative Court, preliminarily examining Facebook’s claim on the inapplicability of the “parental liability” institution to the present case, rejects this ground of appeal, deeming the imputation of the holding company Facebook Inc. to be legitimate – jointly with its subsidiary Facebook Ireland Ltd. – for the unfair commercial practices pursued by the latter, not basing the holding company’s liability exclusively on the concept of ‘parental liability’, but finding that it has omitted to supervise the conduct of the subsidiary and that it has shared the benefit of the effects produced by the unfair commercial practices.
Moreover, the jurisdiction of the Antitrust Authority in matters of personal data has been confirmed by the rejection of the appellant’s defence, which alleged the lack of power of the Antitrust Authority for intruding in a field of exclusive jurisdiction of the Italian Data Protection Authority, due to the alleged pertinence of the censored conducts to the matter of personal data treatment, with consequent sole applicability of the “Privacy Regulation” on the basis of the specialty principle.
The Administrative Court, arguing the reasons grounding the jurisdiction of the Antitrust Authority, has the opportunity to affirm the potential commercial value of personal data, no longer merely the expression of a fundamental right of the individual’s personality, but a parameter of investigation inherent to the trading relationship between consumer and service provider.
Therefore, considering the existence of two distinct aspects of personal data to be evaluated, there is no incompatibility between the provisions for the protection of privacy and the one for the consumer protection, which, on the contrary, are complementary, since they relate to different conducts: the two provisions, in fact, in relation to their respective aims of protection, impose different information duties, functional, on one side, to the correct treatment of personal data for the usage of the platform and, on the other, to the transparency of information about the economic value of personal data and the lucrative purposes pursued through their exploitation. With this specification, the Court also excludes the danger raised by Facebook regarding the risk of multiple penalties that may be inflicted for the same conduct.
With regard to the second conduct examined by the Antitrust Authority, concerning the mechanism for the transmission of users’ personal data to third parties, the Administrative Court has revoked the penalty of 5 million of euros, deeming the Authority’s measure illegitimate given the lack of evidence on the existence of a conduct capable of influencing the consumers’ choices.

The capitalization of personal data
The decision of the Italian Administrative Court has a significant importance as it explores in a new light the extent of consumers’ economic interests with regard to the disclosure and use of their personal data.
While the protection of personal data has historically been developed in consideration of their quality as an expression of a fundamental right of the individual’s personality, with the consequent provision of forms of protection that cannot be waived, such as the right to revoke consent, the Administrative Court now analyses personal data in their quality as assets available for negotiation, susceptible of economic exploitation, potential object of trade between economic operators and consumers: the content of personal data provided by the consumer and the consequent profiling would represent the punctual remuneration provided by the user for the provision of the service.
Consequently, the estimation of personal data from a financial point of view requires economic operators to comply with the obligations of transparency, completeness and non-deception of information required by consumer protection legislation. The user must therefore be made aware of the exchange of transactions underlying the subscription to a synallagmatic contract, as it turns out to be the one for the usage of the social network.

Alessia Asaro and Tankred Thiem