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The delivery of newsletters without the individuals’ prior consent has been sanctioned with 9 months of imprisonment by the Italian Court of Cassation.
Article 167 of the Italian Data Protection Code punishes with the imprisonment between 6 months and 24 months the processing of personal data without the consent of the data subject (and other privacy breaches) with either the purpose to gain profit or to cause harm, provided that the harm is caused.
With reference to a case where one of the major Italian Internet companies had sent newsletters without the prior consent of their recipients, the Court of Cassation, the Italian supreme court, held that:
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the profit generated by the defendant derives from the saving due to the lack of payment of the amount due to the service provider owner of the database whose data have been unlawfully processed;
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in order to prove the harm suffered by the recipients of the newletters, it is not necessary to list their names and provide evidence of the suffered damages;
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the crime is triggered by the ability of the conduct to give rise to the harm; and
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the caused harm can be also a personal harm due to the time lost for the review of the non-requested newsletters.
On the basis of the above circumstances, the managing director of the company has been sanctioned with 9 months of imprisonment.
This decision is leading to considerable discussions as the issue of a criminal penalty for spamming and because the occurence of the harm has been linked to the mere time lost in going through non-requested emails. Indeed, my concern is that such decision went beyond the purposes that the regulator intended to achieve with the reference to the “harm” as a condition for the punishment and such a broad definition on the one hand might considerably reduce the spamming in Italy, but on the other hand might become an excessively dangerous weapon in courts’ hands.
We will see whether such approach will be followed by minor courts (Italy is a common law country and minor courts are not obliged to follow the decisions of higher courts), but in the meantime if you want to discuss the topic, feel free to contact me, Giulio Coraggio.
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