Italy: Arms’ War In Italy: Aggressive Marketers Versus Privacy Watchdog1

Last Updated: 28 January 2010

Article by Felix Hofer2

(As per January 2010)

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 had always to adopt a strictly "opt-in" approach. The choice clearly didn't drive marketers into a status 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 resulted more and more annoyed by spamming practices and behavioural targeting and were no longer prepared to tolerate 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).

2. In the light of such purpose the Italian Privacy Commissioner during the years – and especially after the Italian Privacy Code3 came into force - has frequently addressed various aspects of marketing both, through specific guidelines as well as through case by case decisions, issued with respect to objections filed against practices performed by companies. In year 2003 the Commissioner delivered his views and indications on MM4, SMS5 and E-mail6 marketing, while in 2005-2006 the Authority put Electoral marketing7, Hotels guests registration practices8 as well as their fidelity programs9 and Fax marketing10 under scrutiny.

3. The reins for the local marketing industry were drawn even tighter after the EU Directive 2005/29/EC of May 11th,11 2005 received domestic implementation through the so-called "Consumer Code"12, which considers13 unsolicited commercial communication as an excessively aggressive and illicit practice.

At that point the marketers felt that they had only few options left for avoiding the requirement of specific in-advance consent before targeting consumers with commercial communication. Their ultimate idea therefore was to refer to "publicly available" personal data, such as those contained in telephone books or other freely accessible general directories. Especially providers of Internet connections, of Internet related or of phone services widely used to refer to such data sources for achieving addresses of prospect clients and to target them with frequent and intensely repeated promotional offers.

But again the general public strongly disliked such intrusive practice and therefore inundated the Privacy Commissioner with a significant amount of complaints, which induced the Authority to hoist a clear warning flag by opening an infringement investigation and serving the leading Italian Telco with an injunction prescribing corrective measures14 within a given deadline15. In order to deliver a clear signal to the entire industry sector the Commissioner in the following extended its investigation to the five major local providers of phone and Internet services, served them also with a prescriptive injunction, announced its firm intention to provide them with even more stringent measures in case the targeted companies should fail in radically changing their business habits16 and finally required all of them to submit – no later than by July 5th, 2007 - a set of good business practices, apt to avoid further inconveniences to consumers.

4. While this intense confrontation took place the marketing industry succeeded in obtaining some relief at the legislative level. In February 2006 it was set17 that the Consumer Code's provisions18, allowing promotional messages occurring between individuals and not relying on automated technical systems or devices without involvement of an operator, would prevail over the strict in-advance consent requirements established by the Privacy Code for all commercial communication performed via electronic means. In other terms, in such case marketers benefit from an exemption of the consent requirement.

5. The Privacy Commissioner had to acknowledge the changes made to the previous legal framework and therefore issued – in June 200819 - specific guidelines meant to grant a fair balance between the – frequently conflicting – interests of the marketing industry and those of the targeted consumers. In detail the Commissioner held that in-advance consent was not necessary when the used data:

(a) are available in public directories or other generally accessible listings,

(b) are originating from a previous business relation and are used for market surveys or profiling purposes,

and provided that:

- the promotional messages refer to items or services identical to those object of the previous business relation,

- targeted subjects are properly informed (at any delivery of commercial communication) about their right to obtain ease and immediate interruption of such practice,

- targeted subjects do not object to the delivery of promotional material.

6. Companies involved in direct marketing now felt that many of their problems had come to a satisfying solution, especially as use of data contained in public directories or generally accessible lists appeared available for unconditional use.

But already a few days after the publication of the guidelines above the Privacy Commissioner delivered them a nasty wake up call. Picking up on the previous issues at stake in the confrontation with providers of Internet or phone services, the Commissioner informed the respective companies20 about his convincement that only "publicly" accessible personal data available in public directories/listings prior to August 1st, 2005 (or in private data bases construed before such reference date) could be considered exempt from the in-advance consent requirement, while all other data from sources not present at the mentioned reference moment would not fall under such benefit. Through three decisions issued on the same day the Commissioner banned the use of data base not meeting the particular requirement. A few weeks later companies involved in telemarketing through call centres were hit by two additional decisions of the Authority21.

7. The discussion around this aspect of 'time sensitiveness' induced the lawmakers to an additional step: in February 2009 a provision22, inserted in a law with multiple regulations (typical for the end of year period), clarified that, irrespective of the prescriptions and restrictions laid down in Sections 13 and 14 of the Privacy Code (Legislative Decree no. 196 of 2003), "identification data contained in databases construed with data originating from phone directories existing prior to August 1st 2005 may legitimately be used for promotional purposes until December 31st, 2009 by those who had set up such databases before August 1st, 2005"23.

8. The Privacy Commissioner, while consistently recalling its views on the necessity of targeted subjects' specific in-advance consent for e-mail24 and fax marketing25, felt that he had also to provide some guidelines with respect to the recent Statute Law provisions.

In March 2009 the Authority therefore explained26 that companies, owning databases construed after the content of phone directories set up prior to August 1st, 2005 and intending to use such databases for purposes of marketing or commercial communication, had to:

- substantiate, by documentary evidence, the exact moment of the database's construction,

- process such data directly and without transferring them to third subjects,

- inform the targeted subject both, about his right of opposition to the planned processing as well as of data processor's identity,

- register immediately oppositions received and confirm cease of data's use,

- use data exclusively for marketing purposes within the deadline of December 31st, 2009,

- notify the Data Protection Authority27 about ownership of the respective databases.

Later on an additional guideline28 provided instructions on profiling performed in the context of electronic communication services.

9. Again the Commissioner's indications failed to meet the expectation of the marketers. They brought their outcry and disappointment about the DPA's consistently tough stand to the sympathetic ears of the legislator. The Italian House felt that a more conclusive approach to the problem appeared necessary and therefore decided – through a quite discussed majority vote - to radically overturn the current opt-in system through the following mechanism29:

* the Privacy Code was amended and telephone-marketing is now allowed in absence of targeted subject's specific choice in favour of enlisting his number with a do-not-call register,

* such register should be organized, functioning and effective within six months30,

* it will become subject to supervision and control of the Italian DPA,

* the (already mentioned) deadline, set31 on December 31st, 2009 for using databases with personal information deriving from earlier public phone directories, was also extended to the moment of coming in force of the new do-not-call register32.

10. It goes without saying that the recent legislative initiatives received some "spicy" comments from the Data Protection Authority, which was all but happy about the ways paved - once more - for aggressive marketing practices.

As they say: "If you can't go around a law, have it changed!" It's not difficult to predict that this debate is definitely not over yet.


1. N.B: Kindly acknowledge that the content of this news blurb is exclusively meant to provide only general information. By no means should its content therefore be considered as professional or legal advice, which has always to be sought by consulting directly the lawyer.

2.Felix Hofer is a naming partner of Florence (Italy) based law firm Hofer Lösch Torricelli; contact him by fax at the number +39 055 578230 or via E-mail at the following address:

3. Legislative Decree no. 106 of June 30th, 2003. Section from 121 to 132 of the Code are entirely dedicated to electronic communication; an unofficial English version of the Code may be found at: .

4. Document no. 1672134 of March 12th, 2003, see at:

5. Document no. 29844 of March 12th, 2003, see at:

6. Document no. 1589969 of May 29th, 2003, see at:

7. Document no. 1187710 of September 7th, 2005, see at:; also document no. 1409206 of May 3rd, 2007, see at:

8. Opinion no. 1138725 of June 1st, 2005, see at:

9. Documents nos. 1109624 of February 24th, 2005, see at: and 1252220 of March 9th, 2006, see at:

10. Document no. 1376148 of March 2nd, 2006, see at:; the issue was also dealt with in adjudication n. 1367602 of November 23rd, 2006, see at: and many others in the following.

11. Concerning unfair business-to-consumer commercial practices in the internal market.

12. Legislative Decree no. 206 of September 6th, 2005.

13. See Section 24 of the Code.

14. Document no. 1371041 of December 7th, 2006, to be found at:

15. Set on March 31st, 2007.

16. Injunctions nos. 1412557, 1412586, 1412598, 1412610, 1412626, all dated May 30th, 2007

17. Through Section 19-bis of Law no. 51 of February 23rd, 2006.

18. Reference is to Section 58 of Legislative Decree no. 2006 of September 6th, 2005.

19. Document no. 1526724 of June 19th, 2008.

20. Through decisions nos. 1544315, 1544326 and 1544338, all dated June 26th, 2008.

21. Documents nos. 1562758 and 1562780 dated September 25th, 2008.

22. So Section 44 of Law no. 14 of February 27th, 2009.

23. Unofficial English translation provided by the author of the article.

24. Decisions nos. 1597151 and 1597146, 1601506 of February 19th, 2009.

25. Decisions nos. 1597163 February 19th, 2009, 1601506 and 1601475 of February 26th, 2009.

26. Guideline document no. 1613568 of March 12th, 2009, see at:

27. A fifteen days deadline was set at April 4th, 2009 for fulfilling such requirement.

28. Guideline document no. 1636001 issued on June 25th, 2009.

29. Introduced by Section 20-bis of Law no. 166 dated November 20th, 2009.

30. Starting on November 25th, 2009.

31. By Section 44 of Law no. 14 of February 27th, 2009, see footnote no. 22 above.

32. Six months from November 25th, 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions