Author: Andrea Monti

The EU Cookie Directive, the “privacy-hyped” piece of legislation that forces websites to display a “cookie-waring” for the sake of “privacy protection” is flawed by two weakness.

The first is technical: HTTP (the web, in other words) is not the only protocol around and – though admittedly there are a lot of people using it – there are other ways to use a network that don’t involve a browser. I know, the “command-line” era is gone (it actually is?), there are no “clients” anymore to chat or to do other stuff (there aren’t anymore, actually?) and so on, but what the EU Cookie Directive was built upon is simply a misunderstanding of how the Internet works. By focusing on a single, tiny piece of technology, the EU allowed the idea that technologies have to be regulated instead of the use that humans do of it.

The second mistake is legal: as soon as a network(ed) resource ‘s user is not identifiable than there are no personal data involved. Thus, the privacy of somebody who access a website without disclosing somehow his personal identity is not at stake. Of course I’m aware of the issues related to the anonymous profiling, the fact that no matter if I know exactly who you are, I’m nevertheless able to lure into your personal habits and so on.

But the law is made of both words and definitions: as much as you can stress one or all of them you can’t do it up the reverse the basic meaning of the rules – its ratio as the Latins scholars loved to say – i.e. no identification, no privacy protection. We may, rightfully, disagree on that and claim that a further protection is needed. But this doesn’t justify turn the law upside-down.

The Italian Data Protection Authority continues the enforce a wrong interpretation of ? the Data Protection Code to affirm back ? its jurisdiction over the legal person.

On Feb. 7, 2014 an Italian company active in the ICT VAS received a decision issued by the Italian Data Protection Authority that challenged the handling of legal person data on the basis that, no matter what the recent amendment of the Data Protection Act says, the legal person data are still under the IDPA jurisdiction.

While the appeal against this decision is still to be (filed and) decided, it is important to understand the background of the IDPA assumptions. The EU Directive 95/46/CE clearly states that the its realm of application is limited to a “natural person” only, therefore the “legal person” are not subjected to the Data Protection Code and – a fortiori -to the jurisdiction of the DP Commissioner. Contrary to what the Directive said, Italy passed a “modified” DP Act extending its reach up to legal person. This lead to a waste of time and (huge quantity of) money to comply with something that the EU never asked for.
Only on Dec. 24, 2011 (better late than never) the Law n. 214 fixed this appalling mistake but the Data Protection Authority didn’t agree with the Parliament and issued an order where with a byzantine and convolute syllogism tries to get the notion of legal person back under its reach.

As the Italian Courts often show, the IDPA is not always right in its interpretation of the DP Act and in this specific case it will be interesting to see on which basis the Authority will affirm the superiority of the DP Act over another Law that, by coming later, has the power to limit or provide means of interpretation – even implicitly – an older one. To put it short, the Data Protection Act is not a Constitutional Law and can be interpreted and modified by later-issued law, as in this case.