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This post was written by Avv. Felix Hofer, and first appeared in Volume V of the Gala Gazette.

1. Implementing both, EU Directive 2002/58/EC of July 12th, 2002 (Directive on privacy and electronic communications) as well as Directive 2000/31/EC of June 8th, 2000 (Directive on electronic commerce) the Italian legislator decided that unsolicited commercial communication must always to adopt a strictly “opt-in” approach. The choice clearly didn’t drive marketers into a state of happiness: they felt that their business was unnecessarily harassed by complex and costly burdens. Therefore they decided initially not to care too much about the requirements set by the new regulations and to continue in their proven aggressive marketing techniques.

In doing so they nevertheless had underestimated a couple of factors: on one hand, consumers’ reaction (who became more and more annoyed by SPAM and behavioural targeting and were no longer tolerant of disturbing intrusions into their sphere of personal intimacy), on the other hand, the role of a Special Authority (the Privacy or Information Commissioner - DPA) in charge – in all countries members to the EU - of supervising proper compliance with the key principles of protection of personal data (and quickly focusing on the purpose of achieving a correct balance between consumers’ privacy and electronic marketing.
 

Click here to read the full article as published in Volume V of the Gala Gazette.

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This post was written by Avv. Felix Hofer.

1. When I came around 'game advertising' for the first time my attitude as a lawyer, not necessarily familiar with what I – snobbishly – considered as basically being “kid's or nerds' stuff”, was obviously extremely skeptic. Running more and more frequently into articles published on the topic, I very soon had to realize that this was already a definitely “hot” topic to a number of industry sectors, involving an incredible amount of investment as well as offering truly exciting business perspectives.

According to an interesting US study, published in June 2007 on in-game ad spending targeted to digital homes in the period 2006–2012, companies had already invested 370 mln. of USD and were expected to increase such figure up to 2.051 mln. USD in year 2012.

Fairly impressed by the forecast exposed in the US study I got curious about how feelings would be in Europe about potential business development with respect to the specific area. Again surprise, surprise: according to a study performed on behalf of the EU Commission total revenues from on-line content sales will reach 8,3 bln. on Euro by 2010 (at an increase rate of a growth of over 400% in five years!) and on-line games will contribute with a significant share to that quite remarkable pie. In Fall 2007 another study showed that the Internet had already become the most popular communication tool among youngsters aged between 16 and 24; in the specific target group 82% affirmed to go on-line at least 5 days per week for entertainment and information purposes, while 46% declared that they preferred the Internet over (and used it more than) TV.

With the final blow I was provided when I had to realize that 9,8 bln. Euro had been spent for game consoles only during the 2007 Christmas period, that even traditional community venues (as sports arenas, shopping centers) were arranging specific gaming areas and organizing new entertainment events (e. g. “disc burn” sessions) attractive for gamers, that digital platforms did score important come-backs for popular past-time games and that in France the gaming sector had surpassed the entertainment industry for the first time in annual revenues.

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This post was written by Avv. Felix Hofer.

1. The general principle is that the use of a person's image without his/her consent is basically prohibited (this even more if such use is performed for marketing or – in general - commercial purposes). In Italy the right on a person's image is governed both by the Civil Code and the Intellectual Property Act (Law no. 633 dated April 22nd, 1941, amended and integrated in the following).

(i) According to Section 10 of the Italian Civil Code the image of a person, or of his/her parent, spouse, or child can be exhibited or published only if such use is explicitly permitted by law and provided that the use does not cause prejudice to the dignity or reputation of the person represented.

Should abuse occur (save for the cases in which the use performed results in a criminal offense), a local (civil) Court can order termination of the abuse and award damages.

(ii) The local Intellectual Property Act contains additional provisions on the use of a person's image.

(ii.a.) A person's image MAY NOT be exhibited, reproduced or put on sale without his/her consent (so Section 96 of Law n° 633 dated April 22nd, 1941).
(ii.b.) Exceptions to this basic provision (i. e. use without consent) are allowed if the reproduction of a person's image is justified by his/her notoriety (see Section 97) and by a public interest (e. g. for purposes of information to the general public).
(ii.c.) Finally, a person's image may not be exhibited or put on sale if such use causes prejudice to the represented person's honour, dignity or reputation (Section 97 of the Intellectual Property Act). 

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