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FOCUS - Comunicazioni, media e nuove tecnologie N. 3 - 24/11/2014

 Italian Privacy and the Law of Contracts

Data protection rules are a substantial part of the wage of new compliance rules that have invasively spread through the domestic and European legal systems. In Italy, the fundamental pillar is laid down in the so called privacy code, which is however variously supplemented and integrated by  a number of authorizations, decisions, guidelines, FAQ and instructions issued by the Garante per la Protezione dei Dati Personali (our domestic privacy authority), including with respect to data processing through (EU or extra-EU) call-centres, agents or outsourcers, processing of employees’ data, communication of data among affiliates, spamming, cookies, behavioural advertising, transfer of data abroad, etc. The intricate labyrinth which results from the above seems sometimes to give rise to (and be intended as) a distinct sub-universe of rules, which is totally discrete from the rest of the fabric of law and has to be interpreted and applied on the basis of separate principles. That specialist approach however increases entropy and pushes away privacy laws from the fundamental principles of the Italian law of contracts creating distortions. This article summarises the basic principles of the Privacy Code, discusses their application in a recent important case decided by the Italian privacy authority and proposes an interpretation pursuant to which the privacy consents of the data subjects are contractual in nature, which implies the application of the ordinary Law of Contracts, including principles of good-faith both on the part of the data controller and on the part of the data subject... (segue)

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