The right to privacy is a so-called right. absolute and as such unavailable, properly connatural to the personal sphere of each individual and implying the full faculty to enjoy appreciable spaces of intimacy. The protection provided by our legal system to this subjective situation finds its jagged foundation in normative sources of different rank, among which a role of primacy is covered by the Republican Charter as well as by the central EU Charter of Fundamental Rights., signed in Nice in December of 2000 (si v. Articles. 7 e 8). Alongside the constitutional coverage offered by the constituent legislator pursuant to Articles. 2 e 3, the latter provisions sanctioning, respectively, the recognition and guarantee of the inviolable rights of man and the principle of formal equality of the members of the civitas, the right to respect for private and family life is also indirectly implemented in the inviolability of the home as well as in the protection of the freedom and secrecy of correspondence and any other form of communication, legal assets whose limitation, pursuant to art. 14 e 15 Cost., is subject to the reinforced constraint of the so-called. double reserve, of law and jurisdiction. It is clear that the matter of confidentiality short considered to be logically placed to safeguard the dignity of individuals, reputed subjects of right to see closely, as opposed to public authorities, weak by the legal system and depositories of qualified entitlements since ancient times as deserving of protection (if you think, as an example, to the widespread attention dedicated by the editors of the civil code of 1942 to the rules, dictated for reasons of decorum, safety and hygiene, on the legal distance between buildings erected on finished funds pursuant to art. 873 e ss., but above all to the articles. 900 e ss. relating to the lights and views of the houses). In addition, the current structures of consumer society and the advent of internet have imposed a tiring rethinking of the right of associates "to be left alone" in its original configuration, given the undeniable intrusion that i social network they explain in the life of individuals.
Pacific is in fact like, with technological development, there has been a compression of the right to the so-called. privacy, the visualization and subsequent acquisition of data having now become ordinary practice, even very personal, of the private citizen (the art. through the use of the App, freely downloadable and usable by anyone, that is, the possibility of purchasing equipment from an excessively agile “pseudospionage”, such as drones). The development of telematic platforms is also particularly dangerous from a social point of view, which retain and process strictly sensitive information, with the highly plausible damage to the image and reputation above all of television celebrities, of characters covering delicate institutional functions or in any case, for one reason or another, known to the public.
There is to say, by the way, that also the progressive digitization of civil justice, inaugurated with d.l. 179/2012 conv. With the. 221/2012, exposes the parties to a serious and concrete risk to a procedural affair, which, having ascertained the absolute indispensability of the passage for the correct establishment of the electronic dispute, they are easily traceable by entering their personal details or other identification data in the PEC system.
Anyhow, the first regulatory measure adopted by Italy on the subject of privacy It dates back to 31 December of 1996, a legislative decree. in full transposition of the community directive 96/ 9 relating to the protection of personal data and the establishment of the database, the latter being understood as a document containing information on specific individuals (bank statements, receipts and the like;). Now the database, especially if compiled on a computer medium, makes it easy to consult and understand not only habits or simple personal preferences, but also the same way of life of the transmitter and all this has led to the parallel development of two orientations: the first of the liberal-permissive type, while the second has a more conservative character, hinged on the prior obtaining of the consent of the subject to whom the data to be acquired refer.
The original result was that the consent would have been necessary only if the processing of the digital data did not reveal a "private" interest of the person involved, otherwise in the presence of this interest, consent to the use of the information would logically be superfluous. The subsequent Legislative Decree. 30 June 2003 n.196 (Code regarding the protection of personal data) it determined, instead, the overcoming of the centripetal role occupied by the consensual element; in fact, the aforementioned Code ,to be read together with Reg. European 2016/679 consecrating the principle of the so-called. lawfulness, transforms the primordial right "to be left alone" into the right to be analytically informed about the processing of one's sensitive data (art 7, to which reference is made, contains some sort of vademecum on the claims and powers of the data subject).
The set of reflections in question can (perhaps) in its small way it helps to offer a valid idea about the risk run by the associates every time they have to interface, for the most diverse needs of daily life, with the world of information technology, underlining the need to pay close attention to using the digital services made available to the community. In the opinion of the writer, the main problems related to, modern and highly technologically advanced, “Risk society” can be summarized, essentially and without any ambition for completeness, in the low security of telematic traffic (which the legislator has attempted to remedy on a civil level with the provision of precise "technical rules" for the affixing of the so-called. digital signature when a subject decides to subscribe, for example, an IT contract, while on the political-criminal one with the introduction of contrived crime figures to this), in the unclear limits placed by the Legislative power on the competent state apparatuses in carrying out secret forays into the private sphere of individuals subjected to preliminary investigations (si cfr. the troubled discipline of the c.p.p. in terms of the use and relative advertising of wiretaps), e, finally, in the inadequate reactive and control capacity of the State regarding the lawfulness or otherwise of the behavior of users of internet, with the consequent objective responsibility of the hosting providers, owners of the "wall", ex art. 2050 of the Italian Civil Code. for failure to adopt suitable precautions to prevent the occurrence of unjust damage in the exercise of activities of a dangerous nature (v., which leading case, the decision of the Court of Milan Google c. Live Down of 12 April 2010).
Worthy of mention, Furthermore, the profiles relating to the problematic framework of the right to be forgotten are revealed, complementary argument of the privacy is that, one might say, it maintains an intimate relationship of genus to species with it.
It seems undeniable to see how the institution of oblivion rises in the current social landscape, notoriously marked by the ineluctable pervasiveness of technology and new means of communication, which could potentially come to rip, if I am allowed to borrow a metaphor of Schopenhauerian memory to adapt it to the context in question, the "veil of Maya" of the secrets of an entire community, to the rank of indispensable instrument of protection for individuals, that are damaged in honor and reputation. In this regard, consider that, and this represents a rather trivial observation, comply with the minimums standard for the protection of the aforementioned right imposed by the E.U.. to the Member States it appears, despite the presence in our country of a Guarantor for the protection of personal data (cf.. art. 154 d.lgs. 2003 n. 196), a very difficult goal to implement today, and this because of the unstoppable "wildfire" spread of the news circulating on the web.
The Reg. community of 2016, which provides, pursuant to art. 17, that the interested party has the possibility to obtain the deletion of data concerning him, with speculating obligation of removal by the data controller to be fulfilled without undue delay and upon the occurrence of a specific reason among those indicated in the article of which. The cancellation, But, cannot be requested when the processing is necessary for the exercise of freedom of expression and information guaranteed pursuant to art 21 of the Constitution or for the fulfillment of a legal duty, or for the achievement of public purposes and for the exercise of a right in court.
Therefore, the balancing operation entrusted to the judicial authority and aimed at establishing prevalence is revealed to be quite delicate, case by case, between the journalist's right to report, typical form in which the freedom of expression of thought is manifested, and the right of the interested party to see their own forgotten personal events. The current jurisprudence of legitimacy, honoring its nomophilactic function, tried to mark the borders, indeed labile, in addition to which the exercise of the news would integrate the identification details of illicit facts, sometimes of criminal relevance. By way of extreme simplification, the conditions to be met in order to benefit from the cause of justification considered are essentially three: – the social utility of information; – the objective truth of the facts narrated; – the "civil" form of the exhibition, that is, it must not go so far as to damage the reputation of the person involved. To conclude, add that the United Civil Sections have, lately, icastically pointed out the distinction between news, considered socially useful in the thing itself, and mere activity of historiographic re-enactment of past events (cf.. Cass judgment., sez. a., 22 July 2019, n. 19681, about the republishing in a Sardinian periodical of a news of murder that took place several years earlier),the latter being tolerated only when carried out in such a way as not to identify the protagonist of the story, whose compromised dignity benefits for a long time, in the generality of the hypotheses, of the physiological weakening of collective memory.
Article of Dr.. Federico Pellegrino (Dott.federicopellegrino@gmail.com)