The Law builds three separate protections here: a cap on the distribution fee, freedom for the retailer, and criminal sanctions for acts of obstruction.
First Protection: The Distribution Fee Cap
Art. 23/1 of Law No. 5187: persons distributing periodicals are obliged to distribute the publications whose distribution is requested of them against a fee not exceeding the distribution fee determined by reference to the sale price, circulation and page count they apply to the other publications they distribute.
| Element | Content |
|---|---|
| Under the duty | Persons distributing periodicals |
| The duty | They are obliged to distribute - there is no discretion |
| Fee cap | It cannot exceed the fee they apply to other publications |
| Criteria | Sale price, circulation and page count |
Second Protection: Freedom for the Retailer
Art. 23/2: natural or legal persons offering periodicals for retail sale may at the same time agree with as many distribution companies as they wish and sell whichever publications they wish.
The continuation is clearer still: no one may impose on those persons an obligation not to sell competing publications, or engage in acts conditional on, or having the effect of, not selling those publications.
Third Protection: Criminal Sanctions
Art. 22 punishes two separate acts:
| Act | Penalty |
|---|---|
| Destroying or damaging lawfully printed works with the aim of preventing their publication, distribution or sale | Imprisonment of up to one year and a heavy fine |
| Preventing the printing, publication, distribution or sale of periodicals and non-periodicals by violence or threat, despite compliance with the conditions required by the Law | Imprisonment of up to two years |
Both provisions carry the qualification "where the act does not constitute a graver offence"; if a graver offence is made out, the provisions of that offence apply.
The Constitutional Basis
Art. 28 of the Constitution subjects the prevention of distribution to a procedure: the rule is a judicial decision; where delay is prejudicial it is possible on the order of the authority expressly empowered by law. That authority notifies its decision to a judge within twenty-four hours; if the judge does not approve it within forty-eight hours the decision becomes void.
Art. 30 protects the equipment: a printing house and its annexes together with press equipment may not be seized or confiscated, or prevented from operating, on the ground that they are instruments of crime.
What to Do: Step by Step
- Document it. Put your distribution request and its refusal in writing; ask for written confirmation of an oral refusal.
- Gather comparison data. The measure in Art. 23 is the fee that same distributor applies to other publications - by sale price, circulation and page count.
- Record any pressure on retailers. A condition not to sell competing publications, or acts producing that result, fall within Art. 23/2.
- If there is violence or threat, file a criminal complaint at once. Art. 22 provides for imprisonment.
- If loss has arisen, consider the civil route. General provisions apply to damage arising from obstructed distribution.
- Speak to your lawyer. Which route - criminal, civil or competition legislation - suits your case calls for an assessment.
Summary
- A distributor is obliged to distribute periodicals at a fee not exceeding the one applied to other publications; a breach carries a fine of ten times the total value of the publication avoided.
- No obligation not to sell competing publications may be imposed on a retailer.
- Blocking distribution by violence or threat is an offence carrying imprisonment of up to two years.