SUPREME COURT: BIOLOGICAL DAMAGE RESULTING FROM INFRINGEMENT OF PRIVACY CAN BE PROVEN BY PRESUMPTIONS

27/02/2023

The Supreme Court, Civil Section III, with sentence No. 4752 of 15 February 2023, confirmed the possibility for the injured party to be able to prove the biological damage suffered by presumptions.

 

The circumstances considered by the ruling find their reason in the well-known “Calciopoli” affair, and in particular in the publication of an article in which the address of a person involved in the investigation, overlapping with that of the family residence, was disclosed.

The published data had therefore made it possible to identify that person, causing him to be exposed to violent reactions by some fans with obvious repercussions on his family, which led the wife of the person directly concerned to take legal action for breach of privacy and compensation for pecuniary and non-pecuniary damage.

In examining the grounds of appeal, the Court first of all disavowed the interpretation suggested by the plaintiffs of Article 4 of Legislative Decree No. 196/2003 – applicable at the time of events – according to which the protection invoked could not be extended to persons other than the owner of the personal data (i.e. her husband) since no reference was made to his wife in the article. On the other hand, the violation and the damaging activity, as correctly noted by the the Court of Appeal, could very well be attributed also to the wife since the information published had made it possible to identify not only the person involved in the investigation but also persons close to him without the communication of such data being justified by social utility reasons, objective truthfulness and civil use of the information.

Turning to the damages caused as a result of the unlawful processing of personal data, and in particular the biological damage that the woman allegedly suffered as a result of exposure to football supporters that required a transfer, provoked the crisis of the marital relationship and the emergence of psychological ailment, the Court confirms that the judge may proceed with the verification by placing “as a basis for his decision all the other useful elements acquired at the trial (documents, testimonies), making use of the notions of common experience and presumptions, just as he may have recourse to testimonial, documentary and presumptive evidence for the other non-pecuniary damages”.

Therefore, the judge is not required to resort to a medical-legal inspection, which is expressly referred to in article 2, letter a) of Legislative Decree No. 209/2005 concerning the verification and calculation of non-pecuniary damage, but can make reference to a series of heterogeneous elements, always subject to the minimum limits of ascertainment set by the verification of the requirements of the “severity of the lesion”, “seriousness of the damage” and the fact that specific allegation of the nature and characteristics of the damage is needed, since it is never possible to consider damage just because a violation occurred (Supreme Court, Civil Section I, Ordinance no. 16402/2021).

Elia Piccolo


IP WEEKLY UPDATES (HOT TOPICS)

21/02/2023

The Italian Data Protection Authorityhe blocked the use of users’ data through “Replika”

 

Replika is an application developed in 2020 by a US company, popular worldwide, especially among the very young people, including Italy.

The application is characterised by an artificial intelligence software that interfaces with the user – through sounds and words – designed to create a ‘virtual friend’ capable of improving the user’s emotional well-being, understanding his thoughts and calming his anxiety, helping him manage stress, etc.; in short, the application is able to influence the user’s choices, mood and personality.

By order of 2 February 2023, the Italian Data Protection Authority ordered the blocking of the use of Italian users’ data through the application because there would be no effective barriers to prevent its use by minors (as already happened). In fact, tItalian Data Protection Authority pointed out that it would not be sufficient for users to make statements about their age at the time of registering, but it would be necessary to implement mechanisms to recognise the user’s age even while using the application: for instance, on the basis of understanding the answers given by the user that would clearly be from a minor.

The impact of the Italian Data Protection Authority’s decision in the Replika case could also be relevant for other artificial intelligence systems that will be obliged to have an active mechanisms for the recognition of the age of users also during the use of the application, with a consequent revision also of users licence agreements.


IP WEEKLY UPDATES (HOT TOPICS)

14/02/2023

The European Union funds for trademark and design applications are on the way – Ideas powered for business

 

The European Commission has allocated funds for small and medium enterprises based in the European Union to support activities focused on protecting intellectual property rights.

The fund, called Ideas powered for business https://euipo.europa.eu/ohimportal/it/online-services/sme-fund, will be active from 23 January until 8 December 2023 and offers reimbursement of part of the expenses related to activities concerning trademarks and designs.

Businesses will be able to apply for reimbursement of 75% of filing fees for trademark and design applications before the EUIPO and 50% of filing fees for international applications filed through WIPO. The request for reimbursement must be submitted prior to filing.

Grants are available until exhaustion and it is, therefore, necessary to request the reimbursement as soon as possible by writing to info@lgvavvocati.it


LANDMARK DECISION ON BLOCKING ORDERS BY PUBLIC DNS PROVIDERS

11/11/2022

A panel of three judges of the Court of Milan has dismissed Cloudflare’s appeal against a preliminary injunction requested by the records’ companies Sony, Universal and Warner for blocking users’ access to three notorious pirates BitTorrent sites through Cloudflare’s public DNS service, namely 1.1.1.1.. The users’ access has been already blocked by the local connectivity companies (i.e. Telcos) following the relevant AGCOM’s orders. The Court issued a “dynamic” interim injunction, meaning that DNS blocks shall also include any alias domain to be created by the BitTorrent websites in the future.

Some technical details of the implementation of the injunction order is still subject to the Court of Milan.

Thanks to LGV Avvocati team, founding partners Simona Lavagnini and Luigi Goglia, the senior associate Alessandro Bura and the FPM Team, Luca Vespignani and Marco Signorelli.

#LGVAvvocati #lgv #fpm #copyright

DIGITAL SERVICE PACKAGE

The EU has approved a ‘package of digital services acts’: the Digital Services Act and the Digital Markets Act, which aim to create a more safe, accessible and competitive digital space.

 

With the adoption by the European Parliament of the Digital Markets Act (DMA) and the Digital Service Act (DSA) last July, the legislative process that began in 2020 with the European legislator’s proposal for a strategic digital project (also referred to as the ‘Digital Service Package’) unanimously approved in 2021 by the Member States was concluded.

The aim of this legislative package is to delimit the operating space of digital giants, also known as the ‘giants of the digital ecosystem’ (e.g. Google, Apple, Facebook, Microsoft), and encourage new spaces for small and medium-sized competitors.

Digital Market Act (DMA)- EU Regulation 2022/1925

Regulation 2022/1925 was published in the Official Journal on 12 October 2022 and will enter into force on 1 November 2022.

In the recitals of the Regulation, it is pointed out that the reference market is characterised, on the one hand, by the presence of growing small and medium-sized companies operating as online platforms, and, on the other hand, by the presence of a few large platforms that alone hold the largest market share, thus exercising a control of the access, the so-called gatekeepers. The rules contained in the DMA therefore aim to ensure fair competition on digital platforms by establishing both obligations and prohibitions for gatekeepers.

First of all, the DMA identifies qualitative and quantitative criteria on the basis of which it is possible to determine whether an entity is to be considered a gatekeepers. In summary, an undertaking that provides basic platform services is to be considered a gatekeepers if ‘(a) it has a significant impact on the internal market; (b) it provides a core platform service which is an important gateway for business users to reach end users; and (c) it enjoys an entrenched and durable position in its position or it is foreseeable that it will enjoy such position in the near future’. A company is presumed to satisfy these requirements if it has an annual turnover of at least EUR 7.5 billion or if its market capitalisation was at least EUR 75 billion and if it provides the same core platform service in at least three Member States; if it has at least 45 million active monthly end-users and at least 100,000 EU-based business users in its last financial year.

Then, the Regulation provides for a set of obligations imposed upon gatekeepers listed in Articles 5, 6 and 7. In particular, these shall have to guarantee users the right to unsubscribe from core subscription services under the same conditions as the subscription, not impose software (such as web browsers) by default on the operating system installation, and ensure interoperability of the core functionalities of their instant messaging services and report to the European Commission on their acquisitions and mergers.

The Regulation then provides investigative power for the European Commission, which will adopt an implementing act, specifying the measures that the gatekeeper concerned is to implement in order to effectively comply with the obligations laid down in Articles 6 and 7.

Digital Service Act (DSA) – Proposal for a Regulation

On 4 October, the European Council finally approved the DAS, which will enter into force 20 days after its publication in the Official Journal and will be directly applicable throughout the EU starting 1 January 2024.

The act introduces new rules on transparency, disclosure requirements and accountability with the aim of balancing the rights and responsibilities of users, online intermediaries and public authorities.

It applies to intermediaries offering services for remuneration, at a distance, electronically and at the request of the customer, so-called information society services. The obligations are tailored to the different types of services offered and the size of the operator: large online platforms will be bound to more stringent requirements.

In particular, obligations of due diligence and procedures for the removal of illegal content and for the protection of the fundamental rights of online users will be foreseen, such as, for example, a mechanism that will allow users to easily report illegal content; obligations on the traceability of commercial users in online markets to help identify illegal sellers.

This also provides the European Commission with a power of supervision over bigger online platforms.

Anna Colmegna