The Fake Data Processor and The True Criminal Liability

Under Legislative Decree 196/03 (the Italian enforcement of the Data Protection Directive) one of the most common practice when developing the data-protection corporate policy of a company is to appoint the heads of the various departments as “Data Processor”.

Although easy on the short term, this solution might backfire the company itself. A recent Corte di cassazione (Italian Supreme Court) decision – ? III penal section – Dec. n.20682/14 – ruled that under the workplace safety regulation, the employer that appoints a safety manager who is not fit for the job because of his lack of competence, ? commits a criminal offense.

The very same principle can be applied by analogy to the Data Protection Directive. The DPD – and its Italian enforcement – make mandatory to appoint a data controller actually fit for the job.

By choosing people on different basis (not because they know the matters, but just because they’re company’s heads) means that in case of data-protection-related criminal offenses the data controller (and, most important, the prosecutor and the court) can’t blame (only) the data processor itself.

Then, in terms of management, the decision is between only formally comply with the legal requirements, and actually comply by appointing capable data processors.

In the first case the company is accepting the risk of a future (but uncertain both in “if” and “when”) accident but saves on the short term effort and time.

In the second case the company spends more, has to possibly change its internal processes in the anticipation of an event that might not happens at all.