The Italian law applicable on privacy issues is the Legislative Decree no. 196 of 30 June 2003 ("Codice in materia di protezione dei dati personali", the "Privacy Code"). The Privacy Code implements Directives 46/1995/EC and 58/2002/EC.
DEFINITION OF PERSONAL DATA
Pursuant to section 4 of the Privacy Code, "personal data" shall mean any information relating to individuals who are or can be identified, even indirectly, by reference to any other information including a personal identification number.
DEFINITION OF SENSITIVE PERSONAL DATA
Pursuant to Section 4 of the Privacy Code, "sensitive data" shall mean personal data allowing the disclosure of racial or ethnic origin, religious, philosophical or other beliefs, political opinions, membership of parties, trade unions, associations or organizations of a religious, philosophical, political or trade unionist character, as well as personal data disclosing health and sex life.
NATIONAL DATA PROTECTION AUTHORITY
Garante per la protezione dei dati personali (the "Garante").
Pursuant to Section 37 of the Privacy Code, a data controller shall notify the processing of personal data he/she intends to perform exclusively if said processing concerns:
- genetic data, biometric data, or other data disclosing geographic location of individuals or objects by means of an electronic communications network;
- data disclosing health and sex life where processed for the purposes of assisted reproduction, provision of health care services via electronic networks in connection with data banks and/or the supply of goods, epidemiological surveys, diagnosis of mental, infectious and epidemic diseases, seropositivity, organ and tissue transplantation and monitoring of health care expenditure;
- data disclosing sex life and the psychological sphere where processed by not-for-profit associations, bodies or organisations, whether recognised or not, of a political, philosophical, religious or trade-union character;
- data processed with the help of electronic means aimed at profiling the data subject and/or his/her personality, analysing consumption patterns and/or choices, or monitoring use of electronic communications services except for such processing operations as are technically indispensable to deliver said services to users;
- sensitive data stored in data banks for personnel selection purposes on behalf of third parties, as well as sensitive data used for opinion polls, market surveys and other sample based surveys;
- data stored in ad hoc data banks managed by electronic means in connection with creditworthiness, assets and liabilities, appropriate performance of obligations, and unlawful and/or fraudulent conduct.
DATA PROTECTION OFFICERS
There is no legal requirement in Italy for organisations to appoint a data protection officer.
COLLECTION AND PROCESSING
As a general rule, processing of personal (non sensitive) data by private entities or profit seeking public bodies is only allowed if the data subject gives his/her express consent (Section 23 of the Privacy Code).
The data subject's consent is deemed to be effective if it is given freely and specifically with regard to a clearly identified processing operation, if it is documented in writing, and if the data subject has been provided with a privacy information notice compliant with section 13 of the Privacy Code.
Nevertheless, pursuant to Section 24 of the Privacy Code, consent is not required if the processing of personal (non sensitive) data:
- is necessary to comply with an obligation imposed by a law, regulations or EU legislation;
- is necessary for the performance of obligations resulting from a contract to which the data subject is a party, or else in order to comply with specific requests made by the data subject prior to entering into a contract;
- concerns data taken from public registers, lists, documents or records that are publicly available, without prejudice to the limitations and modalities laid down by laws, regulations and EU legislation with regard to their disclosure and publicity;
- concerns data relating to economic activities that are processed in compliance with the legislation in force as applying to business and industrial secrecy;
- is necessary to safeguard life or bodily integrity of a third party. If this purpose concerns the data subject and the latter cannot give his/her consent because (s)he is physically unable to do so, legally incapable or unable to distinguish right and wrong, the consent shall be given by the entity legally representing the data subject, or else by a next of kin, a family member, a person cohabiting with the data subject or, failing these, the manager of the institution where the data subject is hosted;
- is necessary for carrying out the investigations by defence counsel referred to in Act no. 397 of 07.12.2000, or else to establish or defend a legal claim, provided that the data are processed exclusively for said purposes and for no longer than is necessary therefore by complying with the legislation in force concerning business and industrial secrecy, dissemination of the data being ruled out;
- is necessary to pursue a legitimate interest of either the data controller or a third party recipient in the cases specified by the Garante on the basis of the principles set out under the law, unless said interest is overridden by the data subject's rights and fundamental freedoms, dignity or legitimate interests, dissemination of the data being ruled out;
- except for external communication and dissemination, is carried out by non profit associations, bodies or organisations, recognised or not, with regard either to entities having regular contacts with them or to members in order to achieve specific, lawful purposes as set out in the relevant memorandums, articles of association or collective agreements, whereby the mechanisms of utilisation are laid down expressly in a resolution that is notified to data subjects with the information notice provided for by Section 13 of the Privacy Code;
- is necessary exclusively for scientific and statistical purposes in compliance with the respective codes of professional practice referred to in Annex A) of the Privacy Code, or else exclusively for historical purposes in connection either with private archives that have been declared to be of considerable historical interest pursuant to Section 6(2) of legislative decree no. 499 of 29 October 1999, adopting the consolidated statute on cultural and environmental heritage, or with other private archives pursuant to the provisions made in the relevant codes;
- concerns information contained in the CVs as per Section 13(5 bis) of the Privacy Code;
- except for dissemination and subject to Section 130 hereof, concerns communication of data between companies, bodies and/or associations and parent, subsidiary and/or related companies pursuant to Section 2359 of the Civil Code, or between the former and jointly controlled companies, or between consortiums, corporate networks and/or corporate joint ventures and the respective members, for the administrative and accounting purposes specified in Section 34(1 ter) of the Privacy Code, providing such purposes are expressly referred to in a decision that shall be disclosed to data subjects jointly with the information notice referred to in Section 13 of the Privacy Code.
Sensitive data may only be processed with the data subject's written consent and the Garante's prior authorisation, by complying with the prerequisites and limitations set out in this Code as well as in laws and regulations, unless:
- the data concerns members of religious denominations and entities having regular contact with said denominations for exclusively religious purposes, on condition that the data are processed by the relevant organs or bodies recognised under civil law and are not communicated or disseminated outside said denominations. The latter shall lay down suitable safeguards with regard to the processing operations performed by complying with the relevant principles as set out in an authorisation by the Garante;
- the data concerns affiliation of trade unions and/or trade associations or organisations to other trade unions and/or trade associations, organisations or confederations;
- the data contained in CVs under the terms set forth in Section 13(5 bis) of the Privacy Code.
Sensitive data may also be processed without consent, subject to the Garante's authorisation:
- if the processing is carried out for specific, lawful purposes as set out in the relevant memorandums, articles of association or collective agreements by not for profit associations, bodies or organisations, whether recognised or not, of political, philosophical, religious or trade unionist nature, including political parties and movements, with regard to personal data concerning members and/or entities having regular contacts with said associations, bodies or organisations in connection with the aforementioned purposes, provided that the data are not communicated or disclosed outside and the bodies, associations or organisations lay down suitable safeguards in respect of the processing operations performed by expressly setting out the arrangements for using the data through a resolution that shall be made known to data subjects at the time of providing the information under Section 13 of the Privacy Code;
- if the processing is necessary to protect a third party's life or bodily integrity. If this purpose concerns the data subject and the latter cannot give his/her consent because (s)he is physically unable to do so, legally incapable or unable to distinguish right and wrong, the consent shall be given by the entity legally representing the data subject, or else by a next of kin, a family member, a person cohabiting with the data subject or, failing these, the manager of the institution where the data subject is hosted;
- if the processing is necessary for carrying out the investigations by defence counsel referred to in Act no. 397 of 07.12.2000, or else to establish or defend a legal claim, provided that the data are processed exclusively for said purposes and for no longer than is necessary therefor. Said claim must not be overridden by the data subject's claim, or else must consist in a personal right or another fundamental, inviolable right or freedom, if the data can disclose health and sex life; or
- if the processing is necessary to comply with specific obligations and/or tasks laid down by laws, regulations or Community legislation in the employment context, also with regard to occupational and population hygiene and safety and to social security and assistance purposes, to the extent that it is provided for in the authorisation and subject to the requirements of the code of conduct and professional practice referred to in Section 111 of the Privacy Code.
The Garante has issued general authorizations for the processing of sensitive data.
The data controller, may freely transfer personal data among the EU Member States. Such transfer can only be prohibited when it is made for the purposes of avoiding the measures that would be applied pursuant to the Privacy Code.
Personal data that is the subject of processing may be transferred from the State's territory to countries outside the European Union, temporarily or not and in any form and by any means whatsoever:
- if the data subject has given his/her consent either expressly or, where the transfer concerns sensitive data, in writing;
- if the transfer is necessary for the performance of obligations resulting from a contract to which the data subject is a party, or to take steps at the data subject's request prior to entering into a contract, or for the conclusion or performance of a contract made in the interest of the data subject;
- if the transfer is necessary for safeguarding a substantial public interest that is referred to by laws or regulations, or else that is specified in pursuance of Sections 20 and 21 of the Privacy Code where the transfer concerns sensitive or judicial data;
- if the transfer is necessary to safeguard a third party's life or bodily integrity. If this purpose concerns the data subject and the latter cannot give his/her consent because (s)he is physically unable to do so, legally incapable or unable to distinguish right and wrong, the consent shall be given by the entity legally representing the data subject, or else by a next of kin, a family member, a person cohabiting with the data subject or, failing these, the manager of the institution where the data subject is hosted;
- if the transfer is necessary for carrying out the investigations by defence counsel referred to in Act no. 397 of 07.12.2000, or else to establish or defend a legal claim, provided that the data are transferred exclusively for said purposes and for no longer than is necessary therefor in compliance with the legislation in force applying to business and industrial secrecy;
- if the transfer is carried out in response to a request for access to administrative records or for information contained in a publicly available register, list, record or document, in compliance with the provisions applying to this subject-matter;
- if the transfer is necessary, pursuant to the relevant codes of conduct referred to in AnnexA) of the Privacy Code, exclusively for scientific or statistical purposes, or else exclusively for historical purposes, in connection with private archives that have been declared to be of considerable historical interest under Section 6(2) of legislative decree no. 490 of 29October 1999, enacted to adopt the consolidated statute on cultural and environmental heritage, or else in connection with other private archives pursuant to the provisions made in said codes.
The transfer of processed personal data to a non-EU Member State shall also be permitted if it is authorised by the Garante on the basis of adequate safeguards for data subjects' rights:
- as determined by the Garante also in connection with contractual safeguards, or else by means of rules of conduct as in force within the framework of companies all belonging to the same group. A data subject may establish his/her rights in the State's territory as set forth by this Code also with regard to non compliance with the aforementioned safeguards; or
- as determined via the decisions referred to in Articles 25(6) and 26(4) of Directive 95/46/EC of the European Parliament and of the Council, of 24 October 1995, through which the European Commission may find that a non EU Member State affords an adequate level of protection, or else that certain contractual clauses afford sufficient safeguards.
It is prohibited to transfer personal data that is the subject of processing from the State's territory to countries outside the European Union, temporarily or not and in any form and by any means whatsoever, if the laws of the country of destination or transit of the data do not ensure an adequate level of protection of individuals.
Account shall also be taken of the methods used for the transfer and the envisaged processing operations, the relevant purposes, nature of the data and security measures.
Personal data undergoing processing shall be kept and controlled, also in consideration of technological innovations, of their nature and the specific features of the processing, in such a way as to minimise, by means of suitable preventative security measures, the risk of their destruction or loss, whether by accident or not, of unauthorised access to the data or of processing operations that are either unlawful or inconsistent with the purposes for which the data have been collected.
Processing personal data by electronic means shall only be allowed if the minimum security measures referred to below are adopted in accordance with the arrangements laid down in the technical specifications as per Annex B to the Privacy Code:
- computerised authentication;
- implementation of authentication credentials management procedures;
- use of an authorisation system;
- regular update of the specifications concerning scope of the processing operations that may be performed by the individual entities in charge of managing and/or maintenance electronic means;
- protection of electronic means and data against unlawful data processing operations, unauthorised access and specific software;
- implementation of procedures for safekeeping backup copies and restoring data and system availability;
- keeping an up to date security policy document (exceptions to this duty are provided for by the Privacy Code);
- implementation of encryption techniques or identification codes for specific processing operations performed by health care bodies in respect of data disclosing health and sex life.
Processing personal data without electronic means shall only be allowed if the minimum security measures referred to below are adopted in accordance with the arrangements laid down in the technical specifications as per Annex B to the Privacy Code:
- regular update of the specifications concerning scope of the processing operations that may be performed by the individual entities in charge of the processing and/or by the individual organisational departments;
- implementing procedures such as to ensure safekeeping of records and documents committed to the entities in charge of the processing for the latter to discharge the relevant tasks; or
- implementing procedures to keep certain records in restricted access filing systems and regulating access mechanisms with a view to enabling identification of the entities in charge of the processing.
Certain data controllers are allowed to implement simplified security measures.
Legislative Decree No. 69/2012 (implementing the Directive 2009/12/EC) amended the Privacy Code provisions in relation to breach notification by introducing (i) the definition of "personal data breach" (meaning "a breach of security leading to the accidental destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service" – Section 4, par. 3, let. g-bis) and (ii) new obligations in case of personal data breach.
In particular, in the case of a personal data breach, the provider of publicly available electronic communications services shall, without undue delay, notify the personal data breach to the Garante. When the personal data breach is likely to adversely affect the personal data or privacy of a contracting party or other individual, the provider shall also notify the subscriber or individual of the breach without undue delay.
Notification shall not be required if the provider has demonstrated that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the security breach. Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it. The notification to the contracting party or individual shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and shall recommend measures to mitigate the possible adverse effects of the personal data breach. The notification to the Garante shall, in addition, describe the consequences of, and the measures proposed or taken by the provider to address, the personal data breach (Section 32-bis of the Privacy Code).
The Garante is authorised to investigate complaints and to impose sanctions. The Garante may also appoint experts, proceed with inspections, require to produce documents and to be granted access. In case of criminal actions, the Garante notifies the public prosecutor.
The Privacy Code provides for the following administrative sanctions:
- providing no or inadequate information to data subjects shall be punished by a fine consisting in payment of between six thousand and thirty six thousand Euro (Section 161 of the Privacy Code);
- processing personal data without the relevant data subject consent (if required) shall be punished by a fine consisting in payment of between ten thousand and one hundred and twenty thousand Euro (Section 162 of the Privacy Code);
- processing personal data without submitting the notification to the Privacy Commissioner (if required) shall be punished by a fine consisting in payment of between twenty thousand and one hundred and twenty thousand Euro (Section 163 of the Privacy Code).
Where any of the violations referred to in Sections 161, 162 and 163 is less serious by having also regard to the social and/or business features of the activities at issue, the upper and lower thresholds set forth in the said sections shall be reduced to two-fifths thereof (Section 164-bis, par. 1 of the Privacy Code).
Where one or more provisions mentioned above are violated repeatedly, also on different occasions, in connection with especially important and/or large databases, an administrative sanction shall be applied as consisting in payment of a fine ranging from fifty thousand and three hundred thousand Euro (Section 164-bis, par. 2 of the Privacy Code).
In other, more serious cases, in particular if the prejudicial effects produced on one or more data subjects are more substantial or if the violation concerns several data subjects, the upper and lower thresholds of the applicable fines shall be doubled (Section 164-bis, par. 3 of the Privacy Code).
The fines referred above may be increased by up to four times if they may prove ineffective on account of the offender's economic status (Section 164-bis, par. 4 of the Privacy Code).
The Privacy Code also provides for certain criminal sanctions.
The Privacy Code (Section 130) does not prohibit the use of personal data for the purpose of electronic marketing, but it requires the prior informed consent (opt-in) from the recipient of the communication. The use of automated calling or communications systems without human intervention for the purposes of direct marketing or for sending advertising materials, or else for carrying out market surveys or interactive business communication, as well as electronic communications performed by e-mail, facsimile, MMS or SMS-type messages, shall only be allowed with the contracting party's or user's consent.
Electronic marketing communications shall clearly identify the sender and provide to the recipient all necessary information in order for him/her to eventually refuse the delivery of the direct marketing material (opt-out).
The possibility for the recipient to opt-out from marketing communication services must be guaranteed both during the first contact with the recipient and during any following communications.
Marketing communications by way of non-automated telephone calls are permitted provided that either (i) the data subject has given his prior consent or (ii) the number of the data subject is included in the telephone directory and (s)he has not entered in a public optout register (Registro delle Opposizioni) and opted out from being contacted for marketing purposes.
Legislative Decree No. 69/2012 (implementing the Directive 2009/12/EC) amended the Privacy Code provisions relating to marketing and commercial communications by making reference to the "contracting party's and user's consent" rather than to the "data subject's consent", given that the definition of "data subject" has been recently amended so as to include only natural persons and exclude companies from the application of the Privacy Code, with the exceptions of electronic marketing provisions. Indeed, the Garante clarified that the provisions of the Privacy Code on marketing obligations still apply to companies as well (and not only to natural persons).
ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)
According to Section 123 of the Privacy Code, traffic data shall be erased or made anonymous when they are no longer necessary for the purpose of transmitting the electronic communication. However traffic data can be retained for a period not longer than 6 months for billing and interconnection payments purposes or, with the prior consent of the contracting party or user (which may be withdrawn at any time), for marketing electronic communications services or for the provision of value added services.
According to Section 126 of the Privacy Code, location data may only be processed if made anonymous or if the subscriber or user has been properly informed and (s)he has given her/ his prior consent (which can be withdrawn at any time).
According to Section 122 of the Privacy Code (which reflects recital 66 of the E-Cookies Directive 2009/136/EC and the amended Section 5, par. 3 of the Directive 2002/58/EC – as amended by Directive 2009/136/EC) the storing of information in the contracting party's or user's computer is only allowed if said contracting party or user has been properly informed and (s)he has given her/his consent.
The Privacy Code states that the Garante may determine certain simplified modalities to provide contracting parties or users with the information notice and to identify the most efficient and practical ways to implement the new obligations on cookies. For this purpose, the Garante has recently launched a consultation with which it has also provided some FAQs that shed some light on the Garante's general view on cookies. The Garante confirmed its current trend to subject the cookies regulations to opt-in requirements, with limited exceptions, including analytics, authentication, flash players, "shopping baskets". To better assess the cookies issue under Italian Law, we therefore need to wait for the Garante's guidelines on cookies after the public consultation.
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