Garante per la protezione dei dati personali (Italy) - 9778094
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| Garante per la protezione dei dati personali - GARANTE PER LA PROTEZIONE DEI DATI PERSONALI - 9778094 | |
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| Authority: | Garante per la protezione dei dati personali (Italy) |
| Jurisdiction: | Italy |
| Relevant Law: | Article 5(1)(a) GDPR Deontological Rules PERSONAL DATA PROTECTION CODE |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | |
| Published: | 28.04.2022 |
| Fine: | n/a |
| Parties: | XXX Citynews S.p.a Il Gazzettino S.p.a. Teleradio Diffusione Bassano S.r.l. |
| National Case Number/Name: | GARANTE PER LA PROTEZIONE DEI DATI PERSONALI - 9778094 |
| European Case Law Identifier: | n/a |
| Appeal: | Not appealed |
| Original Language(s): | Italian |
| Original Source: | GPDP (in IT) |
| Initial Contributor: | Samuel Uzoigwe |
The Italian DPA issued warnings to three media outlets for unlawfully publishing the personal data of a data subject in news articles while he was in police detention. The DPA also prohibited further processing of the personal data.
English Summary
Facts
The controllers are three media outlets (Citynews, Il Gazzettino, and Teleradio Diffusione Bassano). The data subject was involved in a criminal investigation.
The media outlets published the data subject's personal data while he was in pre-trial detention. This included images of the data subject, including a "mug shot" taken at the time of his arrest a few months earlier. The data subject submitted a complaint with the DPA for unlawful processing of this data.
Citynews stated that (1) it had complied with the complainant's request by anonymizing the article after its publication; (2) the data subject had not made any request for the removal of his personal data prior to the complaint; (3) the publication was in compliance with the exercise of a proper local news right. It added that (4) the photograph was not a mug shot and did not show the data subject in any physical restraint or manner which impugned his dignity.
Il Gazzettino and Teleradio Diffusione Bassano brought similar arguments forward.
They all also argued (5) that the images did not feature identification codes/numbers or the State Police logo to indicate the exact events in the images. Lastly, they claimed that (6) it was in the public domain by virtue of pending criminal court proceedings involving the data subject, and as a result of a press conference held by a Police Headquarters official.
Holding
The DPA held that the published photographs depicted the data subject while he was in a state of detention, and coincided with his detention. due to the circumstances and context in which they were exhibited and the characteristics described (type of shot and position of the data subject- full length and arms extended close to a wall).
The DPA noted that although it could not rule out the existence of public interest in the matter relating to the offenses alleged against the complainant, the dissemination of the images was still unlawful. The DPA held that combined with personal details of the data subject, the processing was not only unnecessary but also exceeded the police purposes. This injured the dignity of the data subject.
The DPA further observed that while journalists may disseminate personal data without the consent of a data subject for proven needs of justice and police purposes (Article 8(2) of the deontological rules), the dissemination of a photograph of an arrested person - traceable to a "mug shot" or assimilated to it - is not justified. The data subject was not a fugitive but had already been in detention for several months prior to the publications. The circumstance that the images were exhibited during a press conference does not change this.
The DPA held that the controllers violated the principles of lawfulness and fairness in the processing of personal data of the data subject (Article 5(1)(a) GDPR; Article 6 and Article 8 of the Italian Legislative Decree No. 101 of August 10, 2018).
The DPA issued warnings to the controllers for their failure to comply with the provisions provided for the processing of data in the journalistic sphere. Furthermore, the DPA prohibited further processing and dissemination of the photographs, including storage in their historical archive, except for the mere preservation for the purpose of their possible use in judicial proceedings.
The DPA took the measures that controllers took (e.g. removal of the photographs) into consideration when making its decision.
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English Machine Translation of the Decision
The decision below is a machine translation of the Italian original. Please refer to the Italian original for more details.
[doc. web n. 9778094]
Provision of 28 April 2022
Record of measures
n. 165 of 28 April 2022
THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA
IN today's meeting, which was attended by Professor Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer Guido Scorza, members and the cons. Fabio Mattei, general secretary;
GIVEN the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation");
GIVEN the Code regarding the protection of personal data, containing provisions for the adaptation of the national system to Regulation (EU) 2016/679 (Legislative Decree 30 June 2003, n.196, as amended by Legislative Decree 10 August 2018, no. 101, hereinafter the "Code");
GIVEN the complaint pursuant to art. 77 of the Regulations presented to the Guarantor on 11 March 2020 by Mr. XX who, through his lawyer, Avv. Valentina Spada, complained of a violation of the regulations on the protection of personal data in relation to the publication, by some newspapers, between 30 and 31 January 2020, some images including a “mugshot” taken at the time of his arrest months before (18 August 2019), followed by the notification of a precautionary custody order ordered as part of a proceeding for aggravated robbery and aggravated personal injury;
CONSIDERING that the complainant has, in particular, represented that:
- the disputed publications took place at the end of January 2020, several days after the notification of a second precautionary custody order, on 11 January 2020, which opened another proceeding (for theft) and immediately after a hearing held in date 30 January 2020, relating to the first proceeding;
- on January 31, 2020, the online newspaper "Treviso Today" (in the article entitled "XX"), published, in addition to untrue information on the legal matter, a frame of the video surveillance cameras (in which he was not recognizable ) "And the mugshot of the same, in which the same is fully identifiable";
- on January 31, 2020, the news bulletin of Antenna 3 (A3News Treviso) broadcast the service with which the news - disseminated by the Manager of the Treviso Mobile Squad - of the execution of the second order was displayed and "distinctly related images the investigation file and, specifically, frames relating to the video surveillance cameras and mug shots "of the complainant himself;
- on February 2, 2020, "Il Gazzettino", Treviso edition (in the article entitled "XX"), also gave notice of the notification of the second precautionary custody order - summarily describing the episodes attributable to the complainant and without specifying that it was not was definitively convicted - and also in this case the article was accompanied by frames from video surveillance cameras, in which the complainant was not recognizable, "and by a mugshot of the same, in which the XX is portrayed in a frontal position and in which it is fully recognizable ";
- the news of the notification of the (second) ordinance was no longer current as it was reported 20 days after its execution;
- from the television service of Antenna 3 it clearly emerges "how the aforementioned images and mug shots have been made available by the Mobile Squad of the Treviso Police Headquarters", in violation of Articles 1 and 6 of Legislative Decree no. 51 of 18 May 2018 and art. 14 of Presidential Decree no.15 / 2018 and disregarding the circular of the Ministry of the Interior of 26 February 1999 (123 / A183.B320), given the absence of the purposes of justice and police or the consent of the interested party, possibly legitimizing the their diffusion;
- the unlawfulness of making the "mug shots" available by the police and their subsequent dissemination by the media, in the absence of the aforementioned conditions, was also affirmed by the European Court of Human Rights (ruling January 11, 2005 - Sciacca vs Italy)) and reaffirmed by the Guarantor in several of its pronouncements (ex pluribus February 7, 2019, n.38);
- the fact that the images had been made available by the Police Headquarters which coordinated the investigations does not exempt the newspapers from responsibility, given that they still have the duty to assess that the publication of personal data and images provided by the police takes place in compliance with the principles of "essentiality of information" and protection of the dignity of the person, pursuant to arts. 6 and 8 of the Deontological Rules, as reiterated several times by the Guarantor and confirmed by the Court of Cassation (Cass. Civ. N.12834 / 2014) which, however, in the present case were not observed;
CONSIDERING that the complainant asked the Guarantor, for the reasons set out above, to "take all appropriate measures against the Treviso Police Headquarters and the newspapers" Treviso Today "," Il Gazzettino "and" Antenna 3 "and, in particular, declare the unlawfulness of the treatment consisting in the disclosure and publication of Mr. XX and, in any case, of each of its images and for the effect, to order against the aforementioned subjects the extent of the prohibition of treatment, to be understood as referring to the further disclosure, dissemination and publication, also online, including the archive historical », of the mugshots mentioned« and, in general. of each photograph "of the complainant;
CONSIDERING that it is necessary to separate the proceedings in relation to the owners concerned, reserving an independent investigation with reference to the complaints relating to the treatment carried out by the Treviso Police Headquarters;
GIVEN the request for information made by the Office on 14 October 2020 to Citynews S.p.a. ("Treviso Today", prot. 38192) to Il Gazzettino S.p.a. ("Il Gazzettino", prot. 38196) and Teleradio Diffusione Bassano S.r.l. ("Antenna 3", prot. 38202);
GIVEN the note of 14 October 2020 with which Citynews S.p.a. he represented that he had "complied with the complainant's request by anonymizing the article";
GIVEN the acknowledgment note of 21 October 2020 with which Il Gazzettino S.p.a. represented that:
- the information relating to the facts that involved the complainant have been acquired and lawfully processed as an expression of the right to report on a fact of public interest;
- "the image of the interested party, to the best of the writer's knowledge, is not a mugshot, it does not portray him in a state of physical constraint and was published for significant reasons of public interest" since this is a story that has aroused grave concern in the local community;
- in the spirit of collaboration, once the duties of information have been exhausted, the Company has in any case removed the photo of the complainant from the archives;
GIVEN the acknowledgment of 27 October 2020 with which Teleradio Diffusione Bassano S.r.l., through its lawyer, represented that:
- the complaints regarding the violation of the provisions on journalism in relation to the Antenna 3 service are unfounded and reckless in consideration of the fact that the journalist limited herself to interviewing a police officer who provided information relating to the complainant (name, surname and age) not having a confidential nature;
- accompanying the interview "are shown some frames taken from the surveillance cameras thanks to which the complainant was identified by the judicial police, as evidenced by the heraldic emblem of the Treviso mobile squad that appears in the left corner, as well as an excerpt of the document procedural in which images without identification codes / numbers are reported (not mug shots) ";
- the news, disseminated in continent and proportionate language, concerned a fact of public interest - also considering the local broadcasting of the news - in compliance with the provisions relating to the processing of data in the exercise of journalistic activity (articles 136 et seq. of the Code ): in particular of art. 137, paragraph 3, of the Code ("which expressly provides for the possibility of disclosing circumstances or facts disclosed by the interested party directly, or by means of conduct held in public") and art. 6, paragraphs 1 and 3, of the Deontological Rules which define the boundaries of the dissemination of information and comments by the journalist;
- the jurisprudence of the Supreme Court has clarified the conditions and limits relating to the publication of images connected to arrest operations (Cass n.7261 / 2008 and Cassation n. none of the images released in the report portrayed the claimant with handcuffs on his wrists or subjected to any other means of physical coercion; furthermore, the same lawfulness of the processing is confirmed in the principles expressed by the Guarantor on the subject of judicial reporting (document of the Guarantor of May 6, 2004, Privacy and journalism. Some clarifications in response to questions from the Order of Journalists);
- "the injunction request concerning the conservation of the articles and the service for which it is the cause in the historical archive of the newspapers that published them is inadmissible" due to the documentary conservation and archival consultation function performed by the computer archives (as also stated in some decisions of the Guarantor and of the relevant jurisprudence) whose integrity and usability must be preserved free of charge;
GIVEN the note of 6 November 2020 with which the complainant, through his lawyer:
a) with reference to Il Gazzettino S.p.a., acknowledges the spontaneous adjustment and therefore limits its request to the adoption of a provision that pro-future prohibits the publication of the complainant's "mug shots";
b) with reference to Teleradio Diffusione Bassano S.r.l. replies that:
- the dissemination of the photographs depicting the complainant took place in the absence of any conditions legitimizing the dissemination itself (legal or police purposes, consent of the interested party, need to safeguard life or physical safety) considering that it has now occurred to investigations forwarded, when the complainant had been reached, twenty days earlier, by the second precautionary detention order and the police arrest - on the occasion of which the photographs were taken - dated back to August 2019;
- in the television service it is clearly seen that the police officer, during the press conference, exhibits the photos of the complainant contained in a procedural document; in particular, a page of the procedural documents is taken up in which the claimant appears in a frontal position, even full-length and with his arms outstretched against a wall;
- contrary to what is stated by Teleradio Diffusione Bassano S.r.l., these images, although without identification numbers, are comparable to a mugshot and were taken, as part of the identification procedures, coinciding with the detention ordered on 18 August 2019 for the alleged crime of robbery against an elderly woman on 17 August 2019, as can be seen from the documents themselves;
- the jurisprudence cited by the defense of Teleradio Diffusione Bassano S.r.l. in support of the lawfulness of the processing "stands in stark contrast with the granite orientation of the Guarantor for the protection of personal data, with the prevailing jurisprudence of the Court of Cassation, with the principles expressed by the European Court of Human Rights and with the indications operational from various judicial bodies [circular of the Public Prosecutor of Naples of 19 December 2017] and from ministerial circulars [123 / A183.B320] "also referred to in the complaint (Guarantor provision 19 March 2003, 7 February 2019, Cass. Civ. . 12834/2014);
- in the light of articles 137 of the Code and 8 of the Deontological Rules and of the principles expressed by the Court of Cassation in the aforementioned sentence 128344, the dissemination of the image of the complainant portrayed in a frontal position - similar to a mugshot for the characteristics mentioned - must be considered clearly illicit "as not essential with respect to information and free of charge damaging the dignity of the person who, although he did not bear the material signs of the state of detention, such as handcuffs on his wrists, was clearly in a state of deprivation of liberty ";
- given the unlawfulness of the processing, the ban on the dissemination of the photographs in question can only affect its conservation also in the historical archive;
GIVEN the notes of the Office of 17 March 2021 with which, pursuant to art. 166, paragraph 5, of the Code, was communicated to Citynews S.p.a. (prot. 14645/21) to Il Gazzettino S.p.a. (prot. 14647/21) and Teleradio Diffusione Bassano S.r.l. (prot. 14647) the initiation of the procedure for the possible adoption of the measures referred to in art. 58, par. 2, of the Regulation and notified of possible violations of the law in relation to:
- the general principles of processing pursuant to art. 5 paragraph 1 of the Regulations and, in particular, the principle of "lawfulness and correctness" (letter a));
- to articles 137 of the Code and 6 and 8 of the Deontological Rules;
- in art. 2-quater of the Code which states that compliance with the Deontological Rules constitutes "an essential condition for the lawfulness and correctness of the processing";
- in art. 14 of the Presidential Decree n. No. police purposes, by police bodies, offices and headquarters);
GIVEN the note of 15 April with which Teleradio Diffusione Bassano S.r.l., in reiterating its defense and requesting a hearing with the Authority, specified that:
- the images were contained in a judicial provision and were public and freely disclosed;
- none of the frames constitute "mugshot" and the accused is never portrayed in handcuffs or subjected to other means of coercion;
- the duration of the video was only 2.16 minutes;
- almost all the images are taken outdoors with a definition such as to make the complainant unrecognizable and "only at 1.15 minutes appear for about four seconds, three small photographs in which the complainant appears with his face obscured, more closely but not, as mentioned, in a state of arrest or with other details such as police codes, numbers or coats of arms that lead to detention ", therefore, it does not qualify as" mug shots ";
- the same Court of Cassation, in sentence n. 7261/2008 admitted that photos of a defendant in arrest with handcuffs can be disseminated, if he is portrayed in a pose in which the handcuffs are not visible and the Court of Cassation has always excluded the applicability of the art. 8, paragraphs 1 and 2 of the Deontological Rules - thus denying that it is an image of a person "in detention" - with reference to the photo of the arrested person extracted from the mug shots but without the identification numbers of these;
- the processing carried out by the newspaper responds to the journalistic purposes referred to in articles 136 and ss. of the Code and is also supported by the provision that expressly provides for the possibility of disclosing circumstances or facts made known directly by the interested party or by means of conduct held in public, as well as by the position taken by the Guarantor regarding the data that can be published when it concerns the matter of judicial news;
- the newspaper did not dwell on details capable of arousing the curiosity of the public, it did not act maliciously - having relied on the disclosure of information received from institutionally qualified sources - "offers its cooperation to adopt measures which, in compliance with the free manifestation of constitutionally guaranteed thought, may be considered suitable to mitigate the effects (in any case minimal) of the alleged violation ";
GIVEN the note of April 16, 2021 with which Citynews S.p.a. highlighted that:
- the complaint should have been considered irregular, given the absence of a prior request for removal by the complainant pursuant to Articles 15 and ss. of the Regulations;
- the publication of the data took place in compliance with the essentiality of the publication of the data with respect to the exercise of a correct local news right, in order to mitigate the social alarm caused by the repeated criminal acts of the complainant and lead to further complaints by victims who recognized the complainant;
- the photo published by Treviso Today certainly cannot be qualified as a "mugshot", as it lacks any reference to the police or identification numbers, since it is a "photo no different from the common identification photos that can be easily found on a profile social media or on any identity document ";
- the disputed image and the content of the article were deleted and made anonymous as soon as the request for information by the Guarantor Authority was notified, on 14 October 2020;
- In this case "we fall back into a hypothesis of very slight guilt, as the content, coming from videos made public by the police, passed through the scrutiny of the responsible director and on the basis of the evaluation in relation to essentiality and character of public interest of the news ";
GIVEN the note of 19 April 2021 with which Il Gazzettino S.p.a. with which, in reiterating that he had acted in accordance with the provisions on journalism in relation to a news of public interest, he specified that:
- the assumption that the disputed image could be qualified as a "mugshot" does not rest on any certain element while the fact that it was acquired by the public authority in full legality is evident, "as it would not be if the image had been acquired for photo-signaling ";
- "the image appears to be shot in three quarters, with a shot slightly from above and with natural light, while the mug shots are recognizable as the shot is frontal (or side) and the lighting is artificial, in order to do not cast shadows on the subject's face "; furthermore, there is no element that suggests a state of deprivation of liberty;
- even if it were proven that the image had been collected in photo-signaling activities, the penalties referred to in art. 8, paragraph 2, given the public security purpose underlying the dissemination of the image, to be identified in the possibility that other people, victims of the criminal actions carried out by the complainant, would present themselves to recognize it;
- in any case, the fact that the Publisher promptly proceeded, following the complaint of the interested party, to the elimination of the images from its servers should be considered;
GIVEN the minutes of the hearing held on 7 June 2021 during which Teleradio Diffusione Bassano S.r.l., through its lawyer, recalled the arguments already raised in the defense notes sent to the Authority - in particular reiterating the assumption that the contested images do not they are mug shots, as they have no elements (alphanumeric codes, state police logo) - also specifying that:
- the video, which was broadcast for just over 2 minutes and broadcast by a local newspaper having as its catchment area only the province of Treviso, is no longer public, save for any conservation in the newspaper's archive for historical-documentary purposes ;
- the owner "expresses the widest willingness to collaborate with the Guarantor with a view to minimizing the processing of the disputed data";
CONSIDERING the outcome of the investigation relating to the treatment carried out by the Treviso Police Headquarters and the decisions made in this regard by the Guarantor in provision no. 62 of 24 February 2022 (forthcoming) in which, also taking into account art. 8 of the ECHR and of the main jurisprudence of the ECHR on the subject, the unlawfulness of the processing by the Ministry of the Interior was ruled in the present case in light of the fact that:
- the images in question, inserted in the form prepared by the Mobile Police Headquarters for the press conference, appear to have the characteristics of images acquired during the detention of the complainant;
- "no effective need to disclose the images in question has emerged - in addition to the various information supplied with them, including the personal details of the interested party - resulting in the processing itself not only unnecessary, but also excessive with respect to the purposes of police ", in violation of articles 3, paragraph 1, lett. a) and c) and 5 of the legislative decree n. 51/2018 and 14 of the Presidential Decree n. 15/2018;
- the aforementioned disclosure resulted in a violation of the regulations on the protection of personal data and an injury to the dignity of the person concerned, also in consideration of the latter's state of subjection;
CONSIDERING that, unless the fact constitutes a more serious crime, whoever, in a proceeding before the Guarantor, falsely declares or certifies news or circumstances or produces false deeds or documents, is liable pursuant to art. 168 of the Code "False statements to the Guarantor and interruption of the performance of the tasks or the exercise of the powers of the Guarantor";
NOTING that the journalist can disclose personal data, even without the consent of the interested party, as long as it is within the limits set by the right to report and, in particular, in compliance with the requirement of "essentiality of information regarding facts of public interest" (art . 137, paragraph 3, of the Code and art. 6 of the deontological rules);
Whereas:
- the requirement of "essentiality of information" is also referred to with reference to the chronicles relating to criminal proceedings (Article 12 of the ethical rules cited) and, in light of it, this Authority has repeatedly specified that the publication of data identification of the persons against whom the procedure is initiated is not precluded by the law in force and must be framed within the framework of the guarantees aimed at ensuring transparency and control by citizens on the activity of justice (ex pluribus provision no. February 25, 2021, web doc. Web doc. No. 9568061);
- the existence of a public interest in the knowledge of investigative and procedural developments relating to the offenses alleged to the complainant cannot be excluded, also considering the nature and context of occurrence of the same and their having repeated over time, and that therefore the information provided in this regard by the newspapers involved in the complaint can be framed within the limits allowed by the aforementioned provisions;
- a different evaluation requires instead the publication of the photographs portraying the complainant in a frontal position (Treviso Today, Il Gazzettino) and one also full-length and with arms outstretched close to a wall (Antenna 3), which - by circumstance not contested and cleared (provision no. 62 of 24 February 2022 cit.) - were exposed during a press conference called by the competent police headquarters in which news was given of a new restrictive measure issued against the complainant;
- the photographs described, due to the circumstances and context in which they were exhibited and the characteristics described (type of shot and position of the person concerned), have the characteristics of images that portray the complainant while he was in a state of detention, being were taken - as can be seen from the documents acquired - coinciding with the police arrest ordered against him on 18 August 2019 (see the summary annotation of the investigation activity of the Treviso Police Headquarters of 18 September 2019; in this sense, cf. also provision no. 62 of February 24 cit.);
- art. 8, paragraph 2, of the deontological rules establishes that "except for relevant reasons of public interest or proven purposes of justice and police, the journalist does not take or produce images and photos of people in detention without the consent of the interested party";
- regardless of whether or not the images have identification codes / numbers or the logo of the State Police, the jurisprudence of the Court of Cassation (Section III Civ., June 6, 2014, n. 12834) with reference to both mug shots and to "simple passport-sized photos of the arrested" he stated that "the publication in a newspaper of a photo of a person in chronological coincidence with his arrest must respect, for the purposes of its legitimacy, not only the limits of essentiality to illustrate the content of the news and the legitimate exercise of the right to report… but also the particular precautions imposed to protect the dignity of the person portrayed by art. 8, first paragraph, of the deontological rules, which constitutes a source of supplementary legislation; the investigation on compliance with the aforementioned limits in the publication of the photo must be conducted with greater rigor than that relating to the simple publication of the news, taking into account the particular potential damaging the dignity of the person connected to the typical emphasis of the visual tool, and the greater suitability of it to a de-contextualized diffusion that cannot be controlled by the person portrayed ";
CONSIDERING also that this is a topic on which the Guarantor intervened on several occasions, noting that the dissemination of the photograph of an arrested person - attributable to a "mugshot" or similar to the latter - not justified by proven need for justice and police constitutes an unlawful processing of personal data, to nothing noting the fact that they were exposed during a press conference (among others, in addition to provision no. 62 of 24 February 2022, cit., cf. also provision no.76 of 25 February 2021 - web doc. 9568040, provision no.38 of 7 February 2019 - web doc. 9101651);
NOTING that the publication of the photographs described above does not appear to be supported by proven reasons of justice and police, nor otherwise justified by reason of information needs on the matter, considering that "in the present case, the person concerned was not a fugitive, but rather was in been in detention for several months "(provision no. 64 of 24 February cited), as also explicitly highlighted in the same news reports;
CONSIDERING therefore that the treatment described constitutes a violation of the aforementioned articles 2-quater, paragraph 4, 137, paragraph 3, and 139 of the Code and 6 and 8 of the Deontological Rules, as well as the general principles of lawfulness and correctness of the processing of personal data pursuant to art. 5, par. 1 letter a), of the Regulations;
CONSIDERING that compliance with the aforementioned ethical rules is an essential condition for the lawfulness and correctness of the processing of personal data (Article 2-quater of the Code);
NOTING the measures declared by the data controllers in relation to the removal of the photographs de quibus in the context of the journalistic services subject of the complaint, from the moment of the communication of the complaint (Citynews S.p.a. and Il Gazzettino) or during the investigation (Teleradio Diffusione Bassano S.r.l.);
CONSIDERED, pursuant to art. 57 par. 1, lett. f), of the Regulations, to have to evaluate the complaint well founded and for the effect, due to the violations found:
- pursuant to art. 58, par. 2, lett. b), of the Regulation to warn Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. for non-compliance with the provisions on the processing of data in the journalistic field referred to above;
- pursuant to art. 58, par. 2, lett. f) of the Regulations to prohibit the further processing of the photographs portraying the complainant, as specified above (face and full figure), with reference to the further dissemination of the same, including online, including the historical archive, except for the mere conservation of the same for the purposes of their possible use in court; prohibition whose non-compliance may be subject to the criminal sanction pursuant to art. 170 of the Code, in addition to the administrative sanction referred to in art. 83, par. 5, lett. e) of the Regulations;
CONSIDERING that the conditions exist to proceed with the annotation in the internal register of the Authority referred to in art. 57, par. 1, lett. u), of the Regulation, in relation to the measures adopted in this case against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. in accordance with art. 58, par. 2, of the same Regulation;
HAVING REGARD to the documentation on file;
HAVING REGARD to the observations made pursuant to art. 15 of the regulation of the Guarantor n. 1/2000;
SPEAKER Attorney Guido Scorza;
WHEREAS, THE GUARANTOR
pursuant to art. 57, par. 1 letter f), of the Regulation. declares the complaint well founded and for the effect, by reason of the violations found:
a) pursuant to art. 58, par. 2, lett. b), of the Regulations, provides for the measure of the warning against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l .;
b) pursuant to art. 58, par. 2, lett. f) of the Regulations, establishes the prohibition of further processing of the photographs portraying the complainant, as specified above (face and full figure), to be considered as referring to the further dissemination of the same, even online, including the historical archive, except the mere conservation of the same for the purposes of their possible use in court;
c) pursuant to art. 17 of the regulation of the Guarantor n. 1/2019, provides for the entry in the internal register of the Authority pursuant to art. 57, par. 1, lett. u), of the Regulation, of the measures adopted against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. in accordance with art. 58, par. 2, of the same Regulation.
The Guarantor invites, pursuant to art. 157 of the Code and 58, par. 1, lett. a), of the Regulations, Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l., within 30 days from the date of receipt of this provision, to communicate which initiatives have been undertaken, in order to fully implement the provisions therein. Please note that failure to respond to the above request is punished with the administrative sanction referred to in Articles 166 of the Code and art. 83, par. 5, lett. e), of Regulation (EU) 2016/679.
Pursuant to art. 78 of the Regulation, as well as art. 152 of the Code and 10 of the d. lgs. 1 September 2011, n. 150, against this provision, opposition may be proposed to the ordinary judicial authority, with an appeal filed, alternatively, at the court of the place where the data controller resides or is based or at that of the place of residence of the interested party within the deadline of thirty days from the date of communication of the provision itself or sixty days if the applicant resides abroad.
Rome, April 28, 2022
THE VICE-PRESIDENT
Cerrina Feroni
THE RAPPORTEUR
Peel
THE SECRETARY GENERAL
Mattei
[doc. web n. 9778094]
Provision of 28 April 2022
Record of measures
n. 165 of 28 April 2022
THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA
IN today's meeting, which was attended by Professor Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer Guido Scorza, members and the cons. Fabio Mattei, general secretary;
GIVEN the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation");
GIVEN the Code regarding the protection of personal data, containing provisions for the adaptation of the national system to Regulation (EU) 2016/679 (Legislative Decree 30 June 2003, n.196, as amended by Legislative Decree 10 August 2018, no. 101, hereinafter the "Code");
GIVEN the complaint pursuant to art. 77 of the Regulations presented to the Guarantor on 11 March 2020 by Mr. XX who, through his lawyer, Avv. Valentina Spada, complained of a violation of the regulations on the protection of personal data in relation to the publication, by some newspapers, between 30 and 31 January 2020, some images including a "mugshot" taken at the time of his arrest months before (18 August 2019), followed by the notification of a precautionary custody order ordered as part of a proceeding for aggravated robbery and aggravated personal injury;
CONSIDERING that the complainant has, in particular, represented that:
- the disputed publications took place at the end of January 2020, several days after the notification of a second precautionary custody order, on 11 January 2020, which opened another proceeding (for theft) and immediately after a hearing held in date 30 January 2020, relating to the first proceeding;
- on January 31, 2020, the online newspaper "Treviso Today" (in the article entitled "XX"), published, in addition to untrue information on the legal matter, a frame of the video surveillance cameras (in which he was not recognizable ) "And the mugshot of the same, in which the same is fully identifiable";
- on January 31, 2020, the Antenna 3 newsletter (A3News Treviso) broadcast the service with which the news - disseminated by the Manager of the Treviso Mobile Squad - of the execution of the second order was broadcast and "distinctly related images the investigation file and, specifically, frames relating to the video surveillance cameras and mug shots "of the complainant himself;
- on February 2, 2020, "Il Gazzettino", Treviso edition (in the article entitled "XX"), also gave notice of the notification of the second precautionary custody order - summarily describing the episodes attributable to the complainant and without specifying that it was not was definitively convicted - and also in this case the article was accompanied by frames from video surveillance cameras, in which the complainant was not recognizable, "and by a mugshot of the same, in which the XX is portrayed in a frontal position and in which it is fully recognizable ";
- the news of the notification of the (second) ordinance was no longer current as it was reported 20 days after its execution;
- from the television service of Antenna 3 it clearly emerges "how the aforementioned images and mug shots have been made available by the Mobile Squad of the Treviso Police Headquarters", in violation of Articles 1 and 6 of Legislative Decree no. 51 of 18 May 2018 and art. 14 of Presidential Decree no.15 / 2018 and disregarding the circular of the Ministry of the Interior of 26 February 1999 (123 / A183.B320), given the absence of the purposes of justice and police or the consent of the interested party, possibly legitimizing the their diffusion;
- the unlawfulness of making the "mug shots" available by the police and their subsequent dissemination by the media, in the absence of the aforementioned conditions, was also affirmed by the European Court of Human Rights (ruling January 11, 2005 - Sciacca vs Italy)) and reaffirmed by the Guarantor in several of its pronouncements (ex pluribus February 7, 2019, n.38);
- the fact that the images had been made available by the Police Headquarters which coordinated the investigations does not exempt the newspapers from responsibility, given that they still have the duty to assess that the publication of personal data and images provided by the police takes place in compliance with the principles of "essentiality of information" and protection of the dignity of the person, pursuant to arts. 6 and 8 of the Deontological Rules, as reiterated several times by the Guarantor and confirmed by the Court of Cassation (Cass. Civ. N.12834 / 2014) which, however, in the present case were not observed;
CONSIDERING that the complainant asked the Guarantor, for the reasons set out above, to "take all appropriate measures against the Treviso Police Headquarters and the newspapers" Treviso Today "," Il Gazzettino "and" Antenna 3 "and, in particular, declare the unlawfulness of the treatment consisting in the disclosure and publication of Mr. XX and, in any case, of each of its images and for the effect, to order against the aforementioned subjects the extent of the prohibition of treatment, to be understood as referring to the further disclosure, dissemination and publication, also online, including the archive historical », of the mugshots mentioned« and, in general. of each photograph "of the complainant;
CONSIDERING that it is necessary to separate the proceedings in relation to the owners concerned by reserving an independent investigation with reference to the complaints relating to the treatment carried out by the Treviso Police Headquarters;
GIVEN the request for information made by the Office on 14 October 2020 to Citynews S.p.a. ("Treviso Today", prot. 38192) to Il Gazzettino S.p.a. ("Il Gazzettino", prot. 38196) and Teleradio Diffusione Bassano S.r.l. ("Antenna 3", prot. 38202);
GIVEN the note of 14 October 2020 with which Citynews S.p.a. he represented that he had "complied with the complainant's request by anonymizing the article";
GIVEN the acknowledgment of 21 October 2020 with which Il Gazzettino S.p.a. represented that:
- the information relating to the facts that involved the complainant have been acquired and lawfully processed as an expression of the right to report on a fact of public interest;
- "the image of the interested party, to the best of the writer's knowledge, is not a mugshot, does not portray him in a state of physical constraint and was published for significant reasons of public interest" since this is a story that has aroused grave concern in the local community;
- in the spirit of collaboration, once the duties of information have been exhausted, the Company has in any case removed the photo of the complainant from the archives;
GIVEN the acknowledgment of 27 October 2020 with which Teleradio Diffusione Bassano S.r.l., through its lawyer, represented that:
- the complaints regarding the violation of the provisions on journalism in relation to the Antenna 3 service are unfounded and reckless in consideration of the fact that the journalist limited herself to interviewing a police officer who provided information relating to the complainant (name, surname and age) not having a confidential nature;
- accompanying the interview "are shown some frames taken from the surveillance cameras thanks to which the complainant was identified by the judicial police, as evidenced by the heraldic emblem of the Treviso mobile squad that appears in the left corner, as well as an excerpt of the document procedural in which images without identification codes / numbers are reported (not mug shots) ";
- the news, disseminated in continent and proportionate language, concerned a fact of public interest - also considering the local broadcasting of the news - in compliance with the provisions relating to the processing of data in the exercise of journalistic activity (articles 136 et seq. of the Code ): in particular of art. 137, paragraph 3, of the Code ("which expressly provides for the possibility of disclosing circumstances or facts disclosed by the interested party directly, or through conduct held in public") and art. 6, paragraphs 1 and 3, of the Deontological Rules which define the boundaries of the dissemination of information and comments by the journalist;
- the jurisprudence of the Supreme Court has clarified the conditions and limits relating to the publication of images connected to arrest operations (Cass n.7261 / 2008 and Cassation n. none of the images released in the report portrayed the claimant with handcuffs on his wrists or subjected to any other means of physical coercion; moreover, the same lawfulness of the processing is confirmed in the principles expressed by the Guarantor in terms of judicial news (document of the Guarantor of May 6, 2004, Privacy and journalism. Some clarifications in response to questions from the Order of Journalists);
- "the injunction request concerning the conservation of the articles and the service for which it is the cause in the historical archive of the newspapers that published them is inadmissible" due to the documentary conservation and archival consultation function performed by the computer archives (as also stated in some decisions of the Guarantor and of the relevant jurisprudence) whose integrity and usability must be preserved free of charge;
GIVEN the note of 6 November 2020 with which the complainant, through his lawyer:
a) with reference to Il Gazzettino S.p.a., acknowledges the spontaneous adjustment and therefore limits its request to the adoption of a provision that pro-future prohibits the publication of the complainant's "mug shots";
b) with reference to Teleradio Diffusione Bassano S.r.l. replies that:
- the dissemination of the photographs depicting the complainant took place in the absence of any conditions legitimizing the dissemination itself (legal or police purposes, consent of the interested party, need to safeguard life or physical safety) considering that it has now occurred to investigations forwarded, when the complainant had been reached, twenty days earlier, by the second precautionary detention order and the police arrest - on the occasion of which the photographs were taken - dated back to August 2019;
- in the television service it is clearly seen that the police officer, during the press conference, exhibits the photos of the complainant contained in a procedural document; in particular, a page of the procedural documents is taken up in which the claimant appears in a frontal position, even full-length and with his arms outstretched against a wall;
- contrary to what is stated by Teleradio Diffusione Bassano S.r.l., these images, although without identification numbers, are comparable to a mugshot and were taken, as part of the identification procedures, coinciding with the detention ordered on 18 August 2019 for the alleged crime of robbery against an elderly woman on 17 August 2019, as can be seen from the documents themselves;
- the jurisprudence cited by the defense of Teleradio Diffusione Bassano S.r.l. in support of the lawfulness of the processing "stands in stark contrast with the granite orientation of the Guarantor for the protection of personal data, with the prevailing jurisprudence of the Court of Cassation, with the principles expressed by the European Court of Human Rights and with the indications operational from various judicial bodies [circular of the Public Prosecutor of Naples of 19 December 2017] and from ministerial circulars [123 / A183.B320] "also referred to in the complaint (Guarantor provision 19 March 2003, 7 February 2019, Cass. Civ. . 12834/2014);
- in the light of articles 137 of the Code and 8 of the Deontological Rules and of the principles expressed by the Court of Cassation in the aforementioned sentence 128344, the dissemination of the image of the complainant portrayed in a frontal position - similar to a mugshot for the characteristics mentioned - must be considered clearly illicit "as not essential with respect to information and free of charge damaging the dignity of the person who, although he did not bear the material signs of the state of detention, such as handcuffs on his wrists, was clearly in a state of deprivation of liberty ";
- given the unlawfulness of the processing, the ban on the dissemination of the photographs in question can only affect its conservation also in the historical archive;
GIVEN the notes of the Office of 17 March 2021 with which, pursuant to art. 166, paragraph 5, of the Code, was communicated to Citynews S.p.a. (prot. 14645/21) to Il Gazzettino S.p.a. (prot. 14647/21) and Teleradio Diffusione Bassano S.r.l. (prot. 14647) the initiation of the procedure for the possible adoption of the measures referred to in art. 58, par. 2, of the Regulation and notified of possible violations of the law in relation to:
- the general principles of processing pursuant to art. 5 paragraph 1 of the Regulation and, in particular, the principle of "lawfulness and correctness" (letter a));
- to articles 137 of the Code and 6 and 8 of the Deontological Rules;
- in art. 2-quater of the Code which states that compliance with the Deontological Rules constitutes "an essential condition for the lawfulness and correctness of the processing";
- in art. 14 of the Presidential Decree n. No. police purposes, by police bodies, offices and headquarters);
GIVEN the note of 15 April with which Teleradio Diffusione Bassano S.r.l., in reiterating its defense and requesting a hearing with the Authority, specified that:
- the images were contained in a judicial provision and were public and freely disclosed;
- none of the frames constitute "mugshot" and the accused is never portrayed in handcuffs or subjected to other means of coercion;
- the duration of the video was only 2.16 minutes;
- almost all the images are taken outdoors with a definition such as to make the complainant unrecognizable and "only at 1.15 minutes appear for about four seconds, three small photographs in which the complainant appears with his face obscured, more closely but not, as mentioned, in a state of arrest or with other details such as police codes, numbers or coats of arms that lead to detention ", therefore, it does not qualify as" mug shots ";
- the same Court of Cassation, in sentence n. 7261/2008 admitted that photos of a defendant in arrest with handcuffs can be disseminated, if he is portrayed in a pose in which the handcuffs are not visible and the Court of Cassation has always excluded the applicability of the art. 8, paragraphs 1 and 2 of the Deontological Rules - thus denying that it is an image of a person "in detention" - with reference to the photo of the arrested person extracted from the mug shots but without the identification numbers of these;
- the processing carried out by the newspaper responds to the journalistic purposes referred to in articles 136 and ss. of the Code and is also supported by the provision that expressly provides for the possibility of disclosing circumstances or facts made known directly by the interested party or by means of conduct held in public, as well as by the position taken by the Guarantor regarding the data that can be published when it concerns the matter of judicial news;
- the newspaper did not dwell on details capable of arousing the curiosity of the public, it did not act maliciously - having relied on the disclosure of information received from institutionally qualified sources - "offers its cooperation to adopt measures which, in compliance with the free manifestation of constitutionally guaranteed thought, may be considered suitable to mitigate the effects (in any case minimal) of the alleged violation ";
GIVEN the note of April 16, 2021 with which Citynews S.p.a. highlighted that:
- the complaint should have been considered irregular, given the absence of a prior request for removal by the complainant pursuant to Articles 15 and ss. of the Regulations;
- the publication of the data took place in compliance with the essentiality of the publication of the data with respect to the exercise of a correct local news right, in order to mitigate the social alarm caused by the repeated criminal acts of the complainant and lead to further complaints by victims who recognized the complainant;
- the photo published by Treviso Today certainly cannot be qualified as a "mugshot", as it lacks any reference to the police or identification numbers, since it is a "photo no different from the common identification photos that can be easily found on a profile social media or on any identity document ";
- the disputed image and the content of the article were deleted and made anonymous as soon as the request for information by the Guarantor Authority was notified, on 14 October 2020;
- In this case "we fall back into a hypothesis of very slight guilt, as the content, coming from videos made public by the police, passed through the scrutiny of the responsible director and on the basis of the evaluation in relation to essentiality and character of public interest of the news ";
GIVEN the note of 19 April 2021 with which Il Gazzettino S.p.a. with which, in reiterating that he had acted in accordance with the provisions on journalism in relation to a news of public interest, he specified that:
- the assumption that the disputed image could be qualified as a "mugshot" does not rest on any certain element while the fact that it was acquired by the public authority in full legality is evident, "as it would not be if the image had been acquired for photo-signaling ";
- "the image appears to be shot in three quarters, with a shot slightly from above and with natural light, while the mug shots are recognizable as the shot is frontal (or side) and the lighting is artificial, in order to do not cast shadows on the subject's face "; furthermore, there is no element that suggests a state of deprivation of liberty;
- even if it were proven that the image had been collected in photo-signaling activities, the penalties referred to in art. 8, paragraph 2, given the public security purpose underlying the dissemination of the image, to be identified in the possibility that other people, victims of the criminal actions carried out by the complainant, would present themselves to recognize it;
- in any case, the fact that the Publisher promptly proceeded, following the complaint of the interested party, to the elimination of the images from its servers should be considered;
GIVEN the minutes of the hearing held on 7 June 2021 during which Teleradio Diffusione Bassano S.r.l., through its lawyer, recalled the arguments already raised in the defense notes sent to the Authority - in particular reiterating the assumption that the contested images do not they are mug shots, as they have no elements (alphanumeric codes, state police logo) - also specifying that:
- the video, which was broadcast for just over 2 minutes and broadcast by a local newspaper having as its catchment area only the province of Treviso, is no longer public, save for any conservation in the newspaper's archive for historical-documentary purposes ;
- the owner "expresses the widest willingness to collaborate with the Guarantor with a view to minimizing the processing of the disputed data";
CONSIDERING the outcome of the investigation relating to the treatment carried out by the Treviso Police Headquarters and the decisions made in this regard by the Guarantor in provision no. 62 of 24 February 2022 (forthcoming) in which, also taking into account art. 8 of the ECHR and of the main jurisprudence of the ECHR on the subject, the unlawfulness of the processing by the Ministry of the Interior was ruled in the present case in light of the fact that:
- the images in question, inserted in the form prepared by the Mobile Police Headquarters for the press conference, appear to have the characteristics of images acquired during the detention of the complainant;
- "no effective need to disclose the images in question has emerged - in addition to the various information supplied with them, including the personal details of the interested party - resulting in the processing itself not only unnecessary, but also excessive with respect to the purposes of police ", in violation of articles 3, paragraph 1, lett. a) and c) and 5 of the legislative decree n. 51/2018 and 14 of the Presidential Decree n. 15/2018;
- the aforementioned disclosure resulted in a violation of the regulations on the protection of personal data and an injury to the dignity of the person concerned, also in consideration of the latter's state of subjection;
CONSIDERING that, unless the fact constitutes a more serious crime, whoever, in a proceeding before the Guarantor, falsely declares or certifies news or circumstances or produces false deeds or documents, is liable pursuant to art. 168 of the Code "False statements to the Guarantor and interruption of the performance of the tasks or the exercise of the powers of the Guarantor";
NOTING that the journalist can disclose personal data, even without the consent of the interested party, as long as it is within the limits set by the right to report and, in particular, in compliance with the requirement of "essentiality of information regarding facts of public interest" (art . 137, paragraph 3, of the Code and art. 6 of the deontological rules);
Whereas:
- the requirement of "essentiality of information" is also referred to with reference to the chronicles relating to criminal proceedings (Article 12 of the ethical rules cited) and, in light of it, this Authority has repeatedly specified that the publication of data identification of the persons against whom the procedure is initiated is not precluded by the law in force and must be framed within the framework of the guarantees aimed at ensuring transparency and control by citizens on the activity of justice (ex pluribus provision no. February 25, 2021, web doc. Web doc. No. 9568061);
- the existence of a public interest in the knowledge of investigative and procedural developments relating to the offenses alleged to the complainant cannot be excluded, also considering the nature and context of occurrence of the same and their having repeated over time, and that therefore the information provided in this regard by the newspapers involved in the complaint can be framed within the limits allowed by the aforementioned provisions;
- a different evaluation requires instead the publication of the photographs portraying the complainant in a frontal position (Treviso Today, Il Gazzettino) and one also full-length and with arms outstretched close to a wall (Antenna 3), which - by circumstance not contested and cleared (provision no. 62 of 24 February 2022 cit.) - were exposed during a press conference called by the competent police headquarters in which news was given of a new restrictive measure issued against the complainant;
- the photographs described, due to the circumstances and context in which they were exhibited and the characteristics described (type of shot and position of the person concerned), have the characteristics of images that portray the complainant while he was in a state of detention, being were taken - as can be seen from the documents acquired - coinciding with the police arrest ordered against him on 18 August 2019 (see the summary annotation of the investigation activity of the Treviso Police Headquarters of 18 September 2019; in this sense, cf. also provision no. 62 of February 24 cit.);
- art. 8, paragraph 2, of the deontological rules establishes that "except for relevant reasons of public interest or proven purposes of justice and police, the journalist does not take or produce images and photos of people in detention without the consent of the interested party";
- regardless of whether or not the images have identification codes / numbers or the logo of the State Police, the jurisprudence of the Court of Cassation (Section III Civ., June 6, 2014, n. 12834) with reference to both mug shots and to "simple passport-sized photos of the arrested" he stated that "the publication in a newspaper of a photo of a person in chronological coincidence with his arrest must respect, for the purposes of its legitimacy, not only the limits of essentiality to illustrate the content of the news and the legitimate exercise of the right to report… but also the particular precautions imposed to protect the dignity of the person portrayed by art. 8, first paragraph, of the deontological rules, which constitutes a source of supplementary legislation; the investigation on compliance with the aforementioned limits in the publication of the photo must be conducted with greater rigor than that relating to the simple publication of the news, taking into account the particular potential damaging the dignity of the person connected to the typical emphasis of the visual tool, and the greater suitability of it to a de-contextualized diffusion that cannot be controlled by the person portrayed ";
CONSIDERING also that this is a topic on which the Guarantor intervened on several occasions, noting that the dissemination of the photograph of an arrested person - attributable to a "mugshot" or similar to the latter - not justified by proven need for justice and police constitutes an unlawful processing of personal data, to nothing noting the fact that they were exposed during a press conference (among others, in addition to provision no. 62 of 24 February 2022, cit., cf. also provision no.76 of 25 February 2021 - web doc. 9568040, provision no.38 of 7 February 2019 - web doc. 9101651);
NOTING that the publication of the photographs described above does not appear to be supported by proven reasons of justice and police, nor otherwise justified by reason of information needs on the matter, considering that "in the present case, the person concerned was not a fugitive, but rather was in been in detention for several months "(provision no. 64 of 24 February cited), as also explicitly highlighted in the same news reports;
CONSIDERING therefore that the treatment described constitutes a violation of the aforementioned articles 2-quater, paragraph 4, 137, paragraph 3, and 139 of the Code and 6 and 8 of the Deontological Rules, as well as the general principles of lawfulness and correctness of the processing of personal data pursuant to art. 5, par. 1 letter a), of the Regulations;
CONSIDERING that compliance with the aforementioned ethical rules is an essential condition for the lawfulness and correctness of the processing of personal data (Article 2-quater of the Code);
NOTING the measures declared by the data controllers in relation to the removal of the photographs de quibus in the context of the journalistic services subject of the complaint, from the moment of the communication of the complaint (Citynews S.p.a. and Il Gazzettino) or during the investigation (Teleradio Diffusione Bassano S.r.l.);
CONSIDERING, pursuant to art. 57 par. 1, lett. f), of the Regulations, to have to evaluate the complaint well founded and for the effect, due to the violations found:
- pursuant to art. 58, par. 2, lett. b), of the Regulation to warn Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. for non-compliance with the provisions on the processing of data in the journalistic field referred to above;
- pursuant to art. 58, par. 2, lett. f) of the Regulations to prohibit the further processing of the photographs portraying the complainant, as specified above (face and full figure), with reference to the further dissemination of the same, including online, including the historical archive, except for the mere conservation of the same for the purposes of their possible use in court; prohibition whose non-compliance may be subject to the criminal sanction pursuant to art. 170 of the Code, in addition to the administrative sanction referred to in art. 83, par. 5, lett. e) of the Regulations;
CONSIDERING that the conditions exist to proceed with the annotation in the internal register of the Authority referred to in art. 57, par. 1, lett. u), of the Regulation, in relation to the measures adopted in this case against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. in accordance with art. 58, par. 2, of the same Regulation;
HAVING REGARD to the documentation on file;
HAVING REGARD to the observations made pursuant to art. 15 of the regulation of the Guarantor n. 1/2000;
SPEAKER Attorney Guido Scorza;
WHEREAS, THE GUARANTOR
pursuant to art. 57, par. 1 letter f), of the Regulation. declares the complaint well founded and for the effect, by reason of the violations found:
a) pursuant to art. 58, par. 2, lett. b), of the Regulations, provides for the measure of the warning against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l .;
b) pursuant to art. 58, par. 2, lett. f) of the Regulations, establishes the prohibition of further processing of the photographs portraying the complainant, as specified above (face and full figure), to be considered as referring to the further dissemination of the same, even online, including the historical archive, except the mere conservation of the same for the purposes of their possible use in court;
c) pursuant to art. 17 of the regulation of the Guarantor n. 1/2019, provides for the entry in the internal register of the Authority pursuant to art. 57, par. 1, lett. u), of the Regulation, of the measures adopted against Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l. in accordance with art. 58, par. 2, of the same Regulation.
The Guarantor invites, pursuant to articles 157 of the Code and 58, par. 1, lett. a), of the Regulations, Citynews S.p.a., Il Gazzettino S.p.a. and Teleradio Diffusione Bassano S.r.l., within 30 days from the date of receipt of this provision, to communicate which initiatives have been undertaken, in order to fully implement the provisions therein. Please note that failure to respond to the above request is punished with the administrative sanction referred to in Articles 166 of the Code and art. 83, par. 5, lett. e), of Regulation (EU) 2016/679.
Pursuant to art. 78 of the Regulation, as well as art. 152 of the Code and 10 of the d. lgs. 1 September 2011, n. 150, against this provision, opposition may be proposed to the ordinary judicial authority, with an appeal filed, alternatively, at the court of the place where the data controller resides or is based or at that of the place of residence of the interested party within the deadline of thirty days from the date of communication of the provision itself or sixty days if the applicant resides abroad.
Rome, April 28, 2022
THE VICE-PRESIDENT
Cerrina Feroni
THE RAPPORTEUR
Peel
THE SECRETARY GENERAL
Mattei
