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