Legislative decree no. 101 of August 10, 2018 (Decree), amending and adapting the Italian Data Protection Code (Legislative decree no. 196/2003, Data Protection Code or DPC) to the GDPR, has been issued on September 4, 2018 in the Official Journal and entered into force on September 19, 2018. The new DPC is available (in Italian only) at the following link.
The analysis of the Decree reveals a legislative technique aimed at developing most of the ‘open clauses’ contained in the GDPR, i.e. those allowing member states to specify further certain aspects of the provisions concerned (for instance, those related to children’s consent and the processing of special categories of personal data).
Herein you will find a summary of the main provisions of the Decree.
- A. Children’s consent in relation to information society services Children who have reached the age of 14 years can validly express their consent to data processing in relation to the offer of information society services. The holder of parental responsibility over the child must give consent where the child is below the age of 14 years. In this regard, the GDPR sets the minimum age of 16 years old, but allows member states to fix a lower age for granting valid consent. This is an example of how the Italian legislator benefitted from a GDPR open clause. Considering such age limit, online content requests will have to be devised so that they are appropriate for children of at least 14 years of age. This, without prejudice to the specific law provisions concerning the required age for the execution of contracts.
- B. Safeguard measures for the processing of biometric, genetic and health-related data Biometric, genetic and health-related data can be processed if specific safeguard measures (including security measures, such as encryption and pseudonymization) are implemented. The Italian DPA (Garante) will establish such safeguards at least on a two-yearly basis (see also lett. G below). This is a further specification of Article 9 (4) of the GDPR, concerning the processing of special categories of personal data, allowing member states to introduce additional conditions and limitations with regard to the special categories of personal data. This means that, under Italian law, the processing of such data may be subject to particularly strict requirements. Such a provision enhances the protection of biometric, genetic and health-related data, but it creates further burdens for data controllers and processors.
- C. Judicial data The processing of judicial data is allowed based only on a law or regulatory provision providing for appropriate safeguards for data subjects. Lacking these law provisions, the requirements for the lawful processing of judicial data shall be determined through a Decree of the Ministry of Justice. That said, there are specific cases—newly introduced in the Italian Data Protection Code—in which law provisions should broaden, in the near future, the possibility to process judicial data lawfully (e.g., in the employment context, for judicial defense, AML, anti-mafia).
- D. Designated / Authorized persons The data controller or data processor, in the context of their organizational structure, may delegate to natural persons, expressly designated, specific tasks and functions related to the processing activities to be carried out. This provision basically replaces the roles of both the persons in charge of the processing (‘incaricati del trattamento’) and internal data processors (‘responsabili interni’) set forth under the DPC, by using the generic expression ‘designated individuals’ (‘persone designate’). The introduction of this provision in the DPC reflects Article 29 of the GDPR which refers to ‘any person acting under the authority of the controller or of the processor’, thus leaving room for persons authorized to carry out some tasks related to processing activities, giving them appropriate instructions. The Decree does not get into the modalities of designation of such persons but leaves the determination thereof to data controllers and processors.
- E. Data processing in employment context The Garante will lay down ethical rules for personal data processing carried out both by public and private bodies in the employment context, pursuant to Article 88 of the GDPR. That said, there are grounds to argue that, with the necessary amendments, the general authorizations issued in the past by the Garante will be confirmed in the near future.
- F. Sanctions The most relevant changes to the DPC concern sanctions, both administrative and criminal.
a) Administrative sanctions Administrative sanctions recall those established by the GDPR, specifically:
- The Decree states that Article 83(4)
of the GDPR (imposing administrative fines up to €10 million /
up to 2 percent of the total worldwide annual turnover of the
preceding financial year (if higher) applies in case of violation
of specific provisions of the DPC, such as:
- Article 2-quinquies(2) (Child’s consent for information society services), namely in case the information notice does not meet the relevant requirement;
- Article 123(4) (Traffic Data), namely in case the information notice given by providers of a public communication network or publicly available electronic communications service does not comply with the relevant GDPR provisions (Articles 13-14);
- Article 110(1), namely in case of failure to carry out the data protection impact assessment in the context of medical, biomedical and epidemiological research.
- In addition, Article 83(5) of the
GDPR (imposing administrative fines up to €20 million / up to
4 percent of the total worldwide annual turnover of the preceding
financial year (if higher) applies in case of most serious
violations of the DPC, such as:
- Article 2-ter (Legal basis for personal data processing pursuant to a public interest);
- Article 2-quinquies (Child’s consent for information society services), where the child’s consent is not properly collected;
- Article 2-septies (Safeguards for the processing of biometric, genetic and health-related data);
- Article 2-octies (Unlawful processing of judicial data).
b) Criminal sanctions for unlawful data processing Criminal sanctions continue to play a fundamental role. The Decree confirms crimes already existing in the DPC and introduces new ones. To this regard, attention has been paid to avoid possible violations of ‘ne bis in idem’ principle, according to which no one shall be twice punished for the same offence. In light of the above and generally speaking, those violations of the GDPR / DPC amounting to administrative sanctions do not constitute criminal offence at the same time. The criminal offences set forth by the new DPC are as follows:
- Unlawful communication and dissemination of personal data, where a large scale processing takes place, with the aim of making profit or causing damage in violation of specific provisions of the same DPC (DPC, Article 167-bis). The sanction is the imprisonment from one to six years (it may be lowered in case administrative sanctions also apply). This crime only refers to the communication or dissemination of a part of / an entire automated filing system (“archivio automatizzato”). The expression ‘automated filing system’ rises doubts of interpretation, as it is not defined either in the same Decree or in the GDPR. Given the interpretation issue and all the elements expected to occur for this crime, in practice, the criminal sanction for this conduct is likely to apply in few cases.
- Fraudulent acquisition of personal data where a large scale processing takes place (DPC, Article 167-ter) with the aim of making profit or causing a damage. The sanction is imprisonment from one to four years. This crime constitutes the other side of the wrongdoing under Article 167-bis: While the latter focus on the communication and dissemination of personal data, this one relates to the acquisition.
- The Decree states that Article 83(4) of the GDPR (imposing administrative fines up to €10 million / up to 2 percent of the total worldwide annual turnover of the preceding financial year (if higher) applies in case of violation of specific provisions of the DPC, such as:
The Italian legislator has then made a few changes to existing criminal offences, specifically:
- Misrepresentation / false declaration to the Garante and intentional interruption of Garante’s exercise of powers (Article 168 of the Data Protection Code), for example the conduction of proceedings or investigations;
- Non-compliance with Garante’s decisions (Article 170);
- Violation of provisions on employees’ remote monitoring and the ban on surveys of opinions, making reference to the sanctions established by the Italian Statute of Workers (Law no. 300/1970).
- G. Garante’s general authorizations The Garante, by means of a general resolution, shall identify the provisions contained in the general authorizations currently in force, which are compliant with the GDPR and/or the new Italian Data Protection Code. The general resolution should be issued within 150 days. It is worth noting that the Garante’s general resolution will be subject to public consultation within 90 days from the entry into force of the Decree: This will allow each stakeholder to take part in the legislative process. Provisions which are not compliant with the GDPR and/or the new DPC will cease to be effective starting from the publication, in the Official Journal, of the abovementioned Garante’s general resolution. This means in practice that the Garante’s general resolution is to be issued by February 16, 2019. Thus, until the Garante’s evaluations and resolution, all the general authorizations remain valid and continue to be applied. However, most of such authorizations are expected to be consistent with the GDPR and, therefore, to be confirmed.
- H. Simplified procedures for small and medium-sized companies The Garante has been granted with the power of introducing simplified procedures/means for small and medium-sized companies to comply with the data controller’s obligations under the GDPR (Article 154-bis (4)).
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