Sanoma Uitgevers B.V. v. The Netherlands
In Progress Mixed Outcome
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The Regional Administrative Court of Lazio in Rome, Italy overturned a suspension imposed on two media companies’ broadcasting activities by the Italian Communications Regulatory Authority for disseminating misleading information on the Covid-19 pandemic. After the companies broadcast a television show discussing false and non-scientifically sound information on the causes and treatment of Covid-19, the Regulatory Authority held that the broadcast violated the law requiring media companies not to encourage behavior detrimental to health and safety and suspended the broadcasting licenses for six months. The Court accepted that the broadcast was unlawful but held that the sanction was disproportionate and annulled the Regulatory Authority’s decision.
On March 17 and 18, 2020, Mediacom – the company owning the right to broadcast on “Life 120 Channel” (Channel 61 of the digital television) – transmitted a health-related TV show (“Il Cerca Salute”) with journalist Adriano Panzironi, devoting a special episode to Covid-19, titled “What they did not tell you about coronavirus”. The episode included false and non-scientifically sound information with regards to the factors (e.g., the consumption of carbohydrates) which caused severe symptoms in those with Covid-19 and to the measures necessary to prevent the spread of the pandemic. Statements criticizing traditional medicine – described as “dogmatic” – were repeated throughout the episode, and measures designed to contain the virus, such as mandatory quarantine and social distancing, were described as “medieval”. During the episode, viewers were invited to purchase vitamin supplements, suggested by the “Life120” method created by Adriano Panzironi and promoted by the show, which were presented as an essential means of prevention against the contraction of the coronavirus. Mediacom had learnt that the Italian Communications Regulatory Authority (AGCOM) intended to initiate a proceeding against it in respect of the episode, and ordered the interruption of the broadcast on March 20.
On April 7, 2020 AGCOM issued a decision (Resolution No. 153 of April 2020) which suspended the broadcasting license of Mediacom S.R.L for six months. AGCOM found Mediacom’s conduct to be in breach of article 36 bis (1)(c)(3) of the Consolidated Text of Audiovisual and Radio Media Services (Legislative Decree No. 177 of 31 July 2005), regarding general principles for audiovisual and radio commercial communications, which requires audiovisual commercial communication not to encourage behavior detrimental to health and safety. AGCOM stated that – given its content – the program could not be regarded as offering scientific knowledge and was of a particularly dangerous nature because persuading consumers of the efficacy (if not sufficiency) of the “Life120” vitamin supplements may lead to a decrease in compliance with the containment measures and a subsequent spread of the virus. AGCOM held that because “Il Cerca Salute” does not compare “theses with equal scientific merit according to validated criteria”, their broadcast does not fall “within the scope of the principle of freedom of scientific information”. Article 51(9) of the law states that “[i]f the violation is particularly serious (…), the Authority may order the suspension of the activity of the broadcaster (…) for a period not exceeding six months”, and AGCOM imposed that maximum penalty on the grounds that the episode potentially aggravated a public health emergency.
AGCOM also issued a “twin resolution” (Resolution No. 152 of 7 April 2020) against Italian Broadcasting S.R.L.S. – the company which owned the right to broadcast “Life Tv Network” on Channel 880 of the Eutelsat Hotbird satellite. On March 17 and 18 2020, Italian Broadcasting S.R.L.S. had transmitted the same programs broadcasted by Mediacom.
Both companies appealed the decisions to the Regional Administrative Court of Lazio (Rome), (TAR – Tribunale amministrativo regionale) asking for their enforceability to be suspended.
The Regional Administrative Court of Lazio issued two precautionary decisions: No. 3678/2020 and No. 3680/2020. The Court emphasized that although the AGCOM regulations were intended to inhibit the dissemination of contents regarding the current epidemic emergency, which may generate “misinformation in the public and inspire behaviors not recommended by the competent health authorities,” the six-month suspension was disproportionate. The Court recognized that Mediacom had voluntarily interrupted and deleted the program “Il Cerca Salute” on March 20, before AGCOM implemented it measures. The Court’s decision was issued without prejudice to the prohibition on radio or television broadcasters to transmit false or misinformation as prohibited under Article 36 bis.
These two decisions were of a precautionary nature and were, therefore, aimed at establishing whether the sanction imposed had to be immediately enforceable. The public hearing on the merits of the lawfulness and, in particular, on the proportionality of the sanction was postponed to September 28, 2020 and subsequently to November 9, 2020.
After the Court ruled on the proportionality of the suspension, the AGCOM issued a number of other measures regarding the promotion of the “Life120” supplements, the show “Il Cerca Salute” and the episode “What they did not tell you about coronavirus” (broadcast on different channels up until March 19, 2020). These measures implemented different sanctions, and on October 22, 2020, and February 11, 2021, the Authority imposed administrative financial penalties on Mediacom for breach of Article 36 bis.
The Regional Administrative Court of Lazio issued its final two rulings (No. 12883/2020 and 12884/2020) on December 2, 2020. The central issues before the Court were whether Mediacom and Life TV’s conduct had encouraged behaviors detrimental to health and safety and whether the sanction issued by the Authority was proportionate.
The Court held that the AGCOM’s assessment of the television companies’ conduct was correct. It observed that the Authority had extensively and consistently explained the reasoning behind its decision and agreed with the AGCOM that the conduct was damaging to the public health in that it did not provide exact medical and scientific information.
The Court emphasized the importance of the principle of proportionality when, like the present case, the constitutional right to freedom of expression is involved. It stated that AGCOM had not provided reasons to justify its application of the harshest sanction of suspending the broadcasting licenses. The Court held that AGCOM’s reference to a “congruous period of time” of six months in respect of the “scientific predictions regarding the evolution of the epidemic” was vague, undetermined and therefore insufficient. The Court found that the six-month period exceeded by two months the public health state of emergency which, at the time, had been established until July 31, 2020 and was therefore disproportionate.
The Court stressed that declaring the sanction disproportionate did not negate the assessment of seriousness of the companies’ conduct, which was certainly unlawful.
Accordingly, the Court annulled the AGCOM’s orders, but did not grant any compensation for the damages as the companies had not discharged the requisite burden of proof.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decisions support the right to press freedom, but have impacted on the ability of the Italian Communications Regulatory Authority to apply appropriate sanctions to limit the dissemination of non-scientifically sound information on the Covid-19 pandemic.
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