DSA: AgCom appointed as Digital Services Coordinator with power to impose fines

Article 15 of Decree-Law 123/2023 has officially designated the Italian Authority for Communications Guarantees (Autorità per le garanzie nelle comunicazioni “AgCom”) as the Digital Services Coordinator in accordance with the provisions set forth in EU Regulation 2022/2065 on digital services (“DSA” which we also discussed in a previous contribution available here).

Article 49 of the DSA, in fact, requires all EU Member States to designate one or more competent authorities to be responsible for the supervision of providers of intermediary services and the enforcement the new digital regulation, also throughout the Union, as well as for ensuring coordination at national level in respect of those matters.

The appointment is aimed at ensuring the effectiveness of rights and the efficiency of obligations established by the DSA, as well as the relevant supervision and achievement of the specified objectives. This includes the protection of minors in relation to pornographic content available online, other illegal or prohibited content conveyed by online platforms or other intermediary service providers and contributing to the definition of a safe digital environment.

AgCom will define, through its own provision, the conditions, procedures, and operational methods for exercising its powers and functions as Digital Services Coordinator and it shall carry out these tasks in an impartial, transparent and timely manner.

The powers of Digital Services Coordinator are provided for by Article 51 of the DSA and differentiated among

1. investigation powers, such as the power to carry out, or to request a judicial authority in the Member State to order, inspections in order to examine, seize, take or obtain copies of information relating to a suspected infringement in any form, irrespective of the storage medium; the power to ask explanations in respect of any information relating to a suspected infringement and to record the answers with their consent by any technical means;
2. enforcement powers, such as the power to order the cessation of infringements and, where appropriate, to impose remedies proportionate to the infringement and necessary to bring the infringement effectively to an end, or to request a judicial authority in the Member State to do so; the power to impose fines, or to request a judicial authority in the Member State to do so for failure to comply with the DSA; the power to impose a periodic penalty payment, or to request a judicial authority in the Member State to do so.

In any case, the measures taken by the Digital Services Coordinator in the exercise of its powers shall be effective, dissuasive and proportionate, having regard, in particular, to the nature, gravity, recurrence and duration of the infringement or suspected infringement to which those measures relate, as well as the economic, technical and operational capacity of the provider of the intermediary services concerned where relevant.

Taking a closer look at the power to impose fines, article 15 of Decree-Law 123/2023 provides that in case of a violation of the prescribed obligations, AgCom shall apply, based on principles of proportionality, adequacy, and respect for the right to be heard, in accordance with the procedures established in its own regulations, "administrative fines of up to a maximum of 6% of the global annual turnover for the financial year preceding the commencement of proceedings against the intermediary service provider falling within its sphere of competence, even in its capacity as Coordinator of Digital Services, in accordance with the applicable national and European law relevant to the specific offense."

On a final note, the Italian Competition Authority (“Autorità Garante della Concorrenza e del Mercato”, “AGCM”), the Italian Data Protection Authority (“Garante per la protezione dei dati personali”) and any other competent national authority, within their respective competencies, will collaborate to enable the exercise of AgCom's functions as Coordinator of Digital Services, also through the signing of protocols of understanding aimed at regulating the application and procedural aspects of cooperation.