and the names of their managing directors (Cassazione 14 June 2017, n. 19761
18 ) or
concerning the creditworthiness of individuals who in the past had defaulted
(Cassazione 25 January 2017, n. 1931
19 : the available remedy is removal of a
name improperly inserted in database).
2.7 New Fields: “Data Consumers”
The dominant—both in case law and in legal doctrine—view that data protection is a
non-patrimonial personality right, has overshadowed the very clear economic
dimension of data-driven industries.
These aspects have been gradually emerging not through the Garante, but
through decisions taken by the Italian Competition Authority (Autorità Garante
per la Concorrenza ed il Mercato—AGCM) which is empowered also with consumer protection.
In the Samsung decision (PS10207 of 27 January 2017
20 ) the AGCM fined
Samsung €3M for unfair commercial practices consisting in omitting informing
consumers that the special prices for the purchase of handsets included compulsory
registration on the Samsung platform and provision of personal data for marketing
purposes.
In the WhatsApp I case (CV154, 12 May 2017
21 ) practically all the standard
clauses in the WA general terms and conditions were struck down as unfair
inasmuch they conferred unlimited rights to WA on user data. And in the WhatsApp
II case (PS10601, 12 May 2017
22 ) WA was fined €3M for having transferred
without notice all the data concerning its users to its controlling company, Facebook.
The cases show an increasing relationship between data protection and consumer
protection, which has a distinctive economic nature. Such a patrimonial approach is
bound to increase with the recent Directive on contracts for the supply of digital
content and digital services.
23 Such a Directive recognizes that in the digital world
users enter in contracts with service providers paying, as valuable consideration,
with their data.
This, however, creates a conflict between technological practices over the internet, where services are provided on the basis of data collecting devices (typically
18 Published in Foro italiano (2017) I, 2989 (with note by Pardolesi). The case was decided after a
referral to the CJEU (decision 9 March 2017 in Case C-398/15, Manni v. Camera di Commercio
Lecce).
19 Published in Responsabilità civile e previdenza (2017), p. 837 (with note by Foglia).
20 Published on the AGCM https://www.agcm.it/component/joomdoc/allegati-news/PS10207_
chiusura.pdf/download.html.
21 Il diritto dell’informazione e dell’informatica (2017), p. 371 (with note by Giannone Codiglione).
22 Il diritto dell’informazione e dell’informatica (2017), p. 390 (with note by Giannone Codiglione).
23 Directive 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain
aspects concerning contracts for the supply of digital content and digital services.
Italian National Report: Data Protection in the Internet
249
18 ) or
concerning the creditworthiness of individuals who in the past had defaulted
(Cassazione 25 January 2017, n. 1931
19 : the available remedy is removal of a
name improperly inserted in database).
2.7 New Fields: “Data Consumers”
The dominant—both in case law and in legal doctrine—view that data protection is a
non-patrimonial personality right, has overshadowed the very clear economic
dimension of data-driven industries.
These aspects have been gradually emerging not through the Garante, but
through decisions taken by the Italian Competition Authority (Autorità Garante
per la Concorrenza ed il Mercato—AGCM) which is empowered also with consumer protection.
In the Samsung decision (PS10207 of 27 January 2017
20 ) the AGCM fined
Samsung €3M for unfair commercial practices consisting in omitting informing
consumers that the special prices for the purchase of handsets included compulsory
registration on the Samsung platform and provision of personal data for marketing
purposes.
In the WhatsApp I case (CV154, 12 May 2017
21 ) practically all the standard
clauses in the WA general terms and conditions were struck down as unfair
inasmuch they conferred unlimited rights to WA on user data. And in the WhatsApp
II case (PS10601, 12 May 2017
22 ) WA was fined €3M for having transferred
without notice all the data concerning its users to its controlling company, Facebook.
The cases show an increasing relationship between data protection and consumer
protection, which has a distinctive economic nature. Such a patrimonial approach is
bound to increase with the recent Directive on contracts for the supply of digital
content and digital services.
23 Such a Directive recognizes that in the digital world
users enter in contracts with service providers paying, as valuable consideration,
with their data.
This, however, creates a conflict between technological practices over the internet, where services are provided on the basis of data collecting devices (typically
18 Published in Foro italiano (2017) I, 2989 (with note by Pardolesi). The case was decided after a
referral to the CJEU (decision 9 March 2017 in Case C-398/15, Manni v. Camera di Commercio
Lecce).
19 Published in Responsabilità civile e previdenza (2017), p. 837 (with note by Foglia).
20 Published on the AGCM https://www.agcm.it/component/joomdoc/allegati-news/PS10207_
chiusura.pdf/download.html.
21 Il diritto dell’informazione e dell’informatica (2017), p. 371 (with note by Giannone Codiglione).
22 Il diritto dell’informazione e dell’informatica (2017), p. 390 (with note by Giannone Codiglione).
23 Directive 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain
aspects concerning contracts for the supply of digital content and digital services.
Italian National Report: Data Protection in the Internet
249