Data Protected - Italy

Last updated June 2019

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

_____________________________________________________________________

General | Data Protection Laws

____________________________________________________________

National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

The Legislative Decree no. 196 of 30 June 2003 (the “Data Protection Code”), as amended by the Legislative Decree no. 101 of 10 August 2018, adapts Italian data protection laws to the new provisions of the GDPR.

Entry into force

The GDPR applies from 25 May 2018.

The Legislative Decree no. 101 entered into force on 19 September 2018. 

_____________________________________________________________________ Top

National Supervisory Authority

Details of the competent national supervisory authority

Garante per la Protezione dei Dati Personali (the “Garante”)

Piazza Venezia n. 11 - 00187 Rome (Italy)

(+39) 06.696771

garante@gpdp.it

www.garanteprivacy.it 

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

Exemptions to notification

Not applicable.

_____________________________________________________________________Top

Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The Data Protection Code contains specific provisions addressing the processing of special categories of personal data (i.e. genetic, biometric, health and judicial data) and the processing operations carried out for archiving purposes in the public interest and for scientific, historical or statistical purposes.

The Data Protection Code also introduces certain limitations on data subject rights and specifically regulates the exercise of deceased persons’ rights (see below).

Finally, the Data Protection Code applies specific rules to the healthcare sector and to the processing of personal data for journalistic and employment purposes. 

_____________________________________________________________________Top

Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

The Data Protection Code provides that children who have turned 14 can consent to the processing of their personal data in relation to information society services directly offered to them. For children below the age of 14, consent must be given or authorised by the holder of parental responsibility. In this context, the relevant information concerning the personal data processing must be provided to the child in plain, clear, simple and easily accessible language. 

_____________________________________________________________________ Top

Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The Data Protection Code lists some processing operations of special categories of personal data that must be considered as necessary for reasons of substantial public interest, e.g. processing necessary to keep public records and certain operations carried out in the employment context.  

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

The Data Protection Code allows the processing of personal data relating to criminal convictions and offences only if this is authorised by law, or regulation (when provided for by law), providing for appropriate safeguards for the rights and freedoms of data subjects.

The Data Protection Code also identifies a list of cases in which law could allow said processing operations, e.g. compliance with anti-money laundering law or employment law.

In absence of law or regulation, the Italian Ministry of Justice may, after consulting the Garante, issue a decree permitting certain types of processing of criminal convictions and offences (subject to appropriate safeguards). 

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

_____________________________________________________________________ Top

Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

The Garante has published “Frequently Asked Questions” on the role of the data protection officer in both the public and private sectors. 

_____________________________________________________________________ Top

Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

The Garante has published a list of processing operations subject to the requirement of the data protection impact assessment. The (non-exhaustive) list includes processing activities which are additional to those already identified by GDPR. 

_____________________________________________________________________ Top

Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Italy, there is no explicit obligation in the Data Protection Code to provide this information in Italian, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with. 

Rights to access information

Data subjects have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

The Data Protection Code introduces certain limitations in respect of data subject rights provided by the GDPR, including the right to access information. For example, data subjects' rights are excluded in specific cases where the exercise of these rights could jeopardise the interests protected by anti-money laundering laws, the prerogatives of the parliamentary commissions of inquiry, defensive investigation activities, the exercise of a right in court, or the identity of a whistle-blower in the employment context. 

Rights to data portability

Data subjects also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

According to the Data Protection Code, the data subjects’ rights provided by the GDPR, where related to a deceased person, can be exercised by anyone: (i) having a personal interest; (ii) acting in the interest of the deceased person as an authorised representative; or (iii) acting for family reasons deserving protection. Limitations apply in certain cases, e.g. in the context of the provision of an information society service. 

_____________________________________________________________________ Top

Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

The Data Protection Code provides that controllers and processors can expressly identify individuals operating under their authority and entrust them with certain specific tasks relating to the processing of personal data. Controllers and processors must identify the appropriate way to appoint and properly instruct said individuals.  

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours or, in any case, without unjustified delay. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

A personal data breach must be notified to the Garante at the following address: protocollo@pec.gpdp.it. The Garante is currently working on the data breach notification template which will be available soon on www.garanteprivacy.it

_____________________________________________________________________ Top

Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

_____________________________________________________________________ Top

Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

The Data Protection Code provides for both administrative fines and criminal penalties.

It makes it a criminal offence to: (i) unlawfully process personal data to gain profit or to cause damage to data subjects; (ii) unlawfully communicate or disseminate personal data processed on a large scale to gain profit or to cause damage to data subjects; (iii) fraudulently collect personal data processed on a large scale to gain profit or to cause damage to data subjects; (iv) make false declarations, or produce false documents, or intentionally disrupt the exercise of the functions of the Garante in a proceeding before the Garante or in the course of its investigations; (v) fail to comply with the provisions issued by the Garante; or (vi) breach the provisions related to the remote monitoring of employees or surveys of workers' opinions.

Depending on the breach, the sanction is imprisonment in a range from six months to six years. 

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

Practice

One year after the GDPR came into effect, the Garante published some key figures concerning its application in Italy. Accordingly, since May 2018: (i) 946 data breaches have been notified; (ii) 7,219 complaints have been notified; and (iii) 48,591 companies have appointed a data protection officer.

The first GDPR fine in Italy was issued in April 2019. Following a complex investigation, the Garante found that the e-voting platform used by an Italian political party did not provide for the appropriate technical and organisational measures required to ensure an appropriate level of security pursuant to the GDPR. The e-voting platform, which also experienced some major cyber-attacks in the previous years, was used by the political party and its members to choose representatives, discuss legislative proposals, decide the political strategy, and support the party’s direct democracy message.

Among other critical elements, the Garante identified: (i) the absence of a log management system tracking database accesses/actions; (ii) the lack of organisational measures aimed at defining system administrators’ privileges; and (iii) the sharing of login credentials among the individuals authorised to access the database. In addition to a fine of 50,000 imposed on the data processor operating the platform, the Garante also ordered the completion of a data protection impact assessment concerning the functioning of the e-voting platform itself. 

_____________________________________________________________________ Top

ePrivacy | Marketing and cookies

_____________________________________________________________

National Legislation

ePrivacy laws

The Data Protection Code implemented the Privacy and Electronic Communications Directive

_____________________________________________________________________ Top

Cookies

Conditions for use of cookies

Storing information or accessing information already stored in the terminal equipment of a contracting party or a user, is permitted only upon the informed consent of the contracting party or the user. Consent is not required if technical storage or access to stored information is: (i) aimed exclusively at carrying out the transmission of a communication on an electronic communication network; or (ii) strictly necessary to the provision of an information society service explicitly requested by the contracting party or the user. 

Regulatory guidance on the use of cookies

In May 2014, the Garante issued the “Simplified arrangements to provide information and obtain consent regarding cookies” providing guidance on how to comply with the information duty and lawfully collect the consent of users.

The Garante drew a clear distinction between: (i) technical cookies, necessary to either transmit a communication on a telecom network or to enable websites to offer a service to their users (including browsing cookies, analytics cookies and functional cookies); and (ii) profiling cookies, aimed at creating user profiles to send or show advertising messages in line with their preferences.

Although the use of technical cookies does not require users’ consent, for profiling cookies a prior informed consent of data subjects is required. In both cases, strict information requirements are required. In particular, for profiling cookies two layers of privacy information notices must be provided to users: (i) a short privacy information notice describing the use of profiling cookies must be provided through a pop-up banner as soon as users access the website; and (ii) a detailed privacy information notice describing, among others, categories and purposes of implemented cookies must be always available on the website. 

_____________________________________________________________________ Top

Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Processing of personal data for the purpose of direct marketing through e-mails requires the prior informed consent of the recipient of the communications. 

Conditions for direct marketing by e-mail to corporate subscribers

The same rules apply as for individual subscribers. 

Exemptions and other issues

It is not necessary to obtain consent if the similar products and services exemption applies. However, this exemption only applies if there has been an actual sale (as opposed to a mere negotiation).

Electronic marketing communications must clearly identify the sender, provide an easy opt-out mechanism and the contact details necessary to exercise data subjects’ rights. 

_____________________________________________________________________ Top

Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

Direct marketing communications by way of non-automated telephone calls are permitted provided that: (i) a prior informed consent has been obtained from the data subject; or (ii) the number of the data subject is listed in the public telephone directory and the data subject has not enrolled in the public opt-out register ("Registro Pubblico delle Opposizioni"). 

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

The same rules apply as for individual subscribers. 

Exemptions and other issues

The opt-out register ("Registro Pubblico delle Opposizioni"), established in Italy nine years ago, is a do-not-call register that allows individuals whose telephone number is listed on a public telephone directory to optout of receiving unsolicited telemarketing calls through listing their phone numbers on the register itself.

In 2018, the scope of the register was extended to mobile phones and phones not listed in public telephone directories. In 2019 it has been extended to paper-based mail too. 

_____________________________________________________________________ Top