Italy, Court of Cassation, 3rd Civil Section, 25 February 2017 13151/2017

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)

• Legislative Decree n. 196/2003
• Law n. 675/1996

Summary of the case

The plaintiff sued the publisher of a local newspaper (i.e. a company) asking for compensation, with regard to the publishing (on paper and on the internet, granting free access and download to the readers) of the content of a phone call, acquired in violation of the national provisions on Data Protection, as ruled by a decision of the NDPA. In particular, the Plaintiff, a former employee of the firefighter department, was involved in a phone call with a member of the town council, discussing the appointment of a new employee within the firefighters’ department on the basis of his/her political affiliation. The phone call had been recorded by an unknown third party and sent to the municipality as well as to several local newspapers. The defendant (i.e. publisher of one of such newspapers) had published the content of the phone call and had subsequently been challenged by the plaintiff before the NDPA, which ascertained that the information had been acquired in violation of the national provisions. The NDPA was not challenged and on its basis the plaintiff had filed a complaint before the civil tribunal asking for compensation. Both the first instance Tribunal and the Court of Appeal, though, had rejected the plaintiff’s requests.

• Civil judicial enforcement

Compensation for the violation of the individual’s rights by the defendant, as ascertained by a NDPA’s decision.

The Court focuses on two main issues when deciding the case here examined: in first place, it assesses the status of a non-challenged NDPA decision in the context of a subsequent civil proceeding in which a claim for compensation is raised. The Court states that the NDPA decision cannot bind the judge when deciding in matters of compensation, since the NDPA is not empowered to rule about requests for compensation. The jurisdiction of the NDPA and the civil jurisdiction pertain to two completely different “domains” and as a consequence the civil judge must not be bound by the NDPA decision.

In second place, the Court addressed the issue of the relationship between the right to protection of personal data and the right of information. The Court points out that the Legislative Decree n. 196/2003 – in its Articles 136 and 137 – a balance mechanisms between the right of information and the protection of personal data. Therefore, journalists can diffuse personal data even without the authorization of the data subject provided that there is a public interest involved and that the data are essential with regard to the information. The concept of the balance of interests, although not explicitly highlighted by the Court, indirectly refers to the CJEU decision in the Google Spain case, where the balance of interests had been linked to both the principle of effectiveness and the principle of proportionality. The Court points out that, given the status of fundamental right assigned to the right to privacy, the right of information can be exercised within stricter boundaries compared to the ones protecting the right to honor and reputation, and it is for the judge to ascertain whether, considering both the public interest involved and the methods of processing and diffusing the information, the principle of proportionality has been respected. In the decision examined the Court states that both the first instance judge and the Court of Appeal had ruled that the information would have been impossible for the public to comprehend without the references to the people talking and their political affiliation. The Court of Cassation then points out that such judgment pertains to the merit of the case and cannot be furthermore scrutinized. 

Role of the Charter and role of the general principles on enforcement

The Charter was not applied in this case.

Neither the Charter nor the ECHR are applied in this case. The Court nevertheless refers to the fundamental principle of proportionality, meant as limit to the scope of the right to data protection, as laid out in Article 52 of the Charter.

• Effectiveness
• Proportionality

The Court does not refer to the principle of effectiveness. Nevertheless, it highlights how, given the status of fundamental right assigned to the right to data protection, the right of information must be exercised within strict boundaries regulated by the principle of proportionality. Such statement indirectly refers to the CJEU’s reasoning in Google Spain, where the CJEU pointed out that an effective protection of the right to protection of personal data requires that the judge takes into account the status of fundamental right and that, at least in principle, gives preference to the right to data protection instead of the right of information.

The Court links the principle of proportionality to the provisions laid out in the Legislative Decree n. 196/2003, as the key principle governing the balance of interests carried out by the judge when assessing the relationship between the right to protection of personal data and the right of information. The same concept was also upheld in the Google Spain decision, where the principle of proportionality was instead linked to Article 52 of the CFREU.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

Conform interpretation with EU law as interpreted by the CJEU: the Court only cites several of its previous judgments and it does not initiate a proper dialogue with the CJEU. Nevertheless, it adopts an interpretation of the principle of proportionality in accordance with the findings of the CJEU in the Google Spain case.

To reinforce its reasoning by upholding an interpretation also embraced by the CJEU.