New obligations for providers of electronic communication services and manufacturers of electronic communication devices
On 16 September, 2023, the Italian Government issued a decree (the “Decree”) to combat youth distress, educational poverty and juvenile crime. The government has included provisions for protecting minors using IT devices among the measures adopted.
The obligations imposed by Article 13 of the Decree are addressed to (i) providers of electronic communication services (the “ECS Providers”) that shall ensure the availability of parental control applications as part of contracts for the provision of such services; and to (ii) manufacturers of electronic communication devices (the “Manufacturers”) that shall ensure the default installation of such applications in devices newly placed on the market. The wording used in the Decree is not clear, and it is not specified whether the applications shall be pre-installed on the devices or if the Manufacturers need only to allow the availability of the applications.
Under the Decree, parental control means the “possibility for parents or those exercising parental responsibility to limit and control minors' access to digital content and/or the web, by the selection of digital spaces and times of use”.
1. The impact on the ECS Providers
The ECS Providers shall ensure the availability of parental control applications (free of charge) within their electronic communication services contracts. Such obligations shall be implemented pending the set-up obligations for the Manufacturers (see below).
At first instance, the definition of the content to filter or block and the operational and tech requirements to do so are those already applicable pursuant to article 7-bis of the Law Decree no. 28/2020. The details of such requirements are defined in AGCOM Guidelines no. 9/23, which will come into force in November 2023.
2. The obligation imposed on the Manufacturers
While the obligations imposed on the ECS Providers seem to be relatively low in their operation, as they are essentially already required by Law Decree No. 28/2020, Manufacturers are burdened with additional obligations and must comply with new rules, which are not all well defined by the Decree.
Among the electronic devices, the Decree includes smartphones, computers, tablets, game consoles, smart TVs, smartwatches, virtual assistants and IoT systems.
Manufacturers obligations under the Decree can be classified into two main categories:
- Information obligations (Art. 13, par. 3 of the Decree): within three months from the date of entry into force of the Decree (i.e. by 17 December 2023), Manufacturers shall inform users about the possibility and importance of installing parental control applications. This requirement can also be ensured (i) by including in the packaging of the device a specific leaflet; or (ii) by applying a sticker (in clear and simple language) on the packaging with appropriate graphics and signs informing of the existence of parental control applications.
- Set-Up Obligations (Art. 13, par. 2 of the Decree): When devices are placed on the market, Manufacturers shall ensure that operating systems installed in the devices enable use and include the availability of parental control applications. The deadline to implement the set-up obligations is one year from the entry into force of the Decree (i.e. 17 September 2024). As mentioned above, parental control applications shall be free of charge.
3. Data Protection
Lastly, personal data of minors generated for activation of the application cannot be used for commercial and profiling purposes.
