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Wednesday, November 14, 2012

The Italian Data Protection Authority held that data protection obligations in case of performance of marketing, advertising and commercial activities still apply to data of companies and associations.

The problem had arisen since in 2011 the Italian Government had removed from the definition of "personal data" and "data subjects" for the purposes of Italian data protection law the data of legal entities, companies and associations that therefore are not protected anymore by the safeguards provided by the Italian privacy code. However, the Legislative Decree 69/2012 had amended the provisions of the privacy code relating to the marketing and commercial communications making reference rather than to the definition of data subjects (which does not include anymore companies) to "contracting parties and users".

In the light of this change, the Italian data protection authority has now held that - despite the circumstance that companies' data are not anymore deemed to be "personal data" for the purposes of the Italian privacy code - the privacy obligations still apply in relation to the usage of companies' data for marketing purposes.

Therefore, if a supplier is willing to send newsletters to companies' email addresses in order to advertise its products it will need to obtain the prior consent to the delivery of such communications and the same applies to direct marketing practices, telephone and sms commercial communications.

However, the matter is complicated by the fact that most of the provisions of the privacy code still refer to the definitions of "data subjects" and "personal data" which for example would prevent companies to bring a claim for privacy breach before the Italian data protection authority and to rely on a number of protections given by the Italian privacy code. For this reason the Italian data protection authority required the Government to implement further changes to the privacy code in order to make its provisions consistent with with the new definitions. 

Do you want to discuss the above and the implications for your business? Feel free to contact me, Giulio Coraggio.    
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Written by Giulio Coraggio

IT, gaming, privacy and commercial lawyer at the leading law firm DLA Piper. You can contact me via email at giulio.coraggio@gmail.com or giulio.coraggio@dlapiper.com or via phone at +39 334 688 1147.

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