therefore notices that rules and decisions issued in the pre-internet age are now
adapted to the new environment.
2.1 Data Protection As a Personality Right
Even before data protection laws were enacted, the right to data protection has been
qualified as a personality right (such as reputation, image, or name). In particular
both the first data protection law (n. 695/96) and the Privacy code have connected
data protection to the right to privacy and to personal identity.
This approach is generally followed by the courts (see for one of the first
decisions Cassazione 30 June 2001, n. 8889
9 ) and by legal doctrine. This implies
that data protection is generally qualified as a fundamental right protected under
Article 2 of the Italian Constitution (see Cassazione 19 July 2016, n. 14694
10 ) and is
of a non-patrimonial nature.
This qualification is relevant for what will be said further on under Sect. 2.6.
2.2 Countervailing Interests: Data Retention for Police
and Judicial Investigations
There has always been an open conflict between the Italian Garante and Parliament
and Government as to the maximum time for data retention for police and judicial
investigations. The reasons are related to the strong need to contrast criminal
organizations which are deeply rooted in certain regions (the Mafia and similar
organized crime).
The Privacy Code (article 132) sets a rather short period for data retention of data
concerning telephone traffic (2 years) and of computer traffic (1 year). However,
these deadlines have constantly been prolonged up to 6 years for the needs of police
and criminal investigations. At any rate the discussion on the actual length of data
retention in Italy appears to be belittled by the sweeping powers given to police and
judicial authorities to analyse and match all sort of data in order to contrast terrorist
and serious crimes suspects (Directives 680 and 681/2016).
11
9 Published, inter alia, in Il diritto dell’informazione e dell’informatica (2001), p. 710; Giustizia
civile (2002) I, p. 437; Foro italiano (2001) I, c. 1299 (with notes by Palmieri, Pardolesi and
Granieri).
10 Published in Guida al diritto (2016), pp. 43, 66.
11 See above fn. 6 and 7.
246
V. Zeno-Zencovich
adapted to the new environment.
2.1 Data Protection As a Personality Right
Even before data protection laws were enacted, the right to data protection has been
qualified as a personality right (such as reputation, image, or name). In particular
both the first data protection law (n. 695/96) and the Privacy code have connected
data protection to the right to privacy and to personal identity.
This approach is generally followed by the courts (see for one of the first
decisions Cassazione 30 June 2001, n. 8889
9 ) and by legal doctrine. This implies
that data protection is generally qualified as a fundamental right protected under
Article 2 of the Italian Constitution (see Cassazione 19 July 2016, n. 14694
10 ) and is
of a non-patrimonial nature.
This qualification is relevant for what will be said further on under Sect. 2.6.
2.2 Countervailing Interests: Data Retention for Police
and Judicial Investigations
There has always been an open conflict between the Italian Garante and Parliament
and Government as to the maximum time for data retention for police and judicial
investigations. The reasons are related to the strong need to contrast criminal
organizations which are deeply rooted in certain regions (the Mafia and similar
organized crime).
The Privacy Code (article 132) sets a rather short period for data retention of data
concerning telephone traffic (2 years) and of computer traffic (1 year). However,
these deadlines have constantly been prolonged up to 6 years for the needs of police
and criminal investigations. At any rate the discussion on the actual length of data
retention in Italy appears to be belittled by the sweeping powers given to police and
judicial authorities to analyse and match all sort of data in order to contrast terrorist
and serious crimes suspects (Directives 680 and 681/2016).
11
9 Published, inter alia, in Il diritto dell’informazione e dell’informatica (2001), p. 710; Giustizia
civile (2002) I, p. 437; Foro italiano (2001) I, c. 1299 (with notes by Palmieri, Pardolesi and
Granieri).
10 Published in Guida al diritto (2016), pp. 43, 66.
11 See above fn. 6 and 7.
246
V. Zeno-Zencovich