AGCOM's new Code of Conduct for influencers.

A brief review of the new guidelines published by the Italian Communications Authority in resolution No. 7/24/CONS.

With resolution No. 7/24/CONS, the Italian Communications Authority (AGCOM) published the new, long-awaited code of conduct that will apply to all those who carry out their professional activity on social-media platforms - that is, influencers.

This code of conduct is made up of five main sections, covering respectively: general principles, the addressees of the code of conduct, the protection of fundamental rights, minors and other vulnerable categories, advertising and labelling, and, finally, final provisions.

Taking things in order, the first provision of this code of conduct which - although clearly necessary - appears "behind the times", and moreover clashes with Zuckerberg's new approach (at least as regards Meta's platforms), is point 1.2: "Influencers shall ensure respect for human dignity and shall not publish content or statements that may spread, incite, promote, or otherwise justify, minimise or legitimise violence, hatred or discrimination, or offend the human dignity of a group of people or a member of a group on the basis of any of the grounds set out in Article 21 of the Charter of Fundamental Rights of the European Union".

This is undoubtedly an opening, general-purpose provision that outlines - in an overly generic way - the boundaries of activity on social media. However, the provisions remain "sterile", as they lack substance (when can it be established that content spreads hatred and discrimination? can a platform actually distinguish between incitement and information?).

What does appear innovative, even if it currently seems difficult to manage in practice, is the decision to create an actual "register of influencers" operating within Italian territory. On one hand, a third party is tasked with drawing up and updating - every six months - the register and, on the other hand, influencers are required to include in their bio the wording "influencer listed with AGCOM". Various doubts arise at this point as to the scope and - perhaps - the real usefulness of this specific provision.

There then follows a whole series of explicit bans on covert advertising, with specific reference to the prohibition on publishing "content that may mislead the public as to the nature and effects of the goods and services offered". Under this new code of conduct, "influencers must avoid any form of exploitation of superstition, credulity or fear, in particular of psychologically more vulnerable users".

Here too, there is in reality no clear determination of what content might actually be capable of "misleading" or "exploiting superstition". Once again, we are faced with a code of conduct that purports to "regulate" influencer behaviour without that behaviour ever being clearly defined in substance.

The final provision worth mentioning is found in point 3.3, entitled "Filters and other content-modification mechanisms": "An influencer who modifies, wholly or in part, audiovisual content through the use of filters..., thereby spreading unrealistic images and/or promoting products and services suggesting performance and effects inconsistent with their actual characteristics, must flag this using one of the following labels: modified content, modified photo, modified video, filtered photo, filtered video, filters".

It should be noted that, once again, this rule appears "behind the times" compared with the actual state of the social-media world. It is as if regulatory time moved more slowly than events on social media. First of all, the spread of unrealistic body images on social networks has been a problem and a source of debate for several years now, and, secondly, a "strong" decision on the matter has already been taken by Meta's owner, who opted to remove filters permanently from his platforms.

Therefore, while it is true that filters will continue to be a problem on other social platforms, it is equally true that the AGCOM code's provision loses much of its significance for a large share of users and influencers.

Finally, mention should be made of the fact that point 5.1 refers to a supervisory system harking back to Articles 38 and 67 of the TUSMA (Consolidated Law on Audiovisual and Media Services). The penalty system, therefore, does not change, and consequently the same problems as in the past remain, with the only difference being that from now on "in determining the administrative fine... regard shall be had to the seriousness of the breach, the action taken by the influencer to eliminate or mitigate the consequences of the breach, as well as their personal circumstances and financial situation, pursuant to Article 11 of Law 689/1981".

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