Garante per la protezione dei dati personali (Italy) - 9855545
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| Garante per la protezione dei dati personali - 9855545 | |
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| Authority: | Garante per la protezione dei dati personali (Italy) |
| Jurisdiction: | Italy |
| Relevant Law: | Article 5 GDPR Article 6 GDPR Article 58 GDPR Article 61(2) Italian Personal Data Protection Code |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 15.12.2022 |
| Published: | |
| Fine: | n/a |
| Parties: | n/a |
| National Case Number/Name: | 9855545 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Italian |
| Original Source: | Italian DPA (in IT) |
| Initial Contributor: | LR |
An Italian doctor made critical statements concerning covid-19 health measures. The Rome Provincial Order of Surgeons communicated, on TV and in a press release, information regarding disciplinary action against the doctor. The Italian DPA reprimanded the Order for violating Articles 5(1)(a) and 6 GDPR.
English Summary
Facts
In this case the data subject, an Italian doctor, made critical statements regarding certain obligations of the covid-19 vaccine laws. The Rome Provincial Order of Surgeons and Dentists (the Order) notified him of a summons to obtain preliminary information against him, with a possible view to opening disciplinary procedures. Thereafter, the President of the Order, during a TV appearance, publicly disclosed details of the actions being taken against the data subject. Furthermore, the Order published a press release on its website, also disclosing the action being taken against the doctor.
The data subject filed a complaint with the Italian data protection authority, arguing that his data had been unlawfully processed and the disclosure of the information in this way violated his rights under the GDPR. In submissions responding to the complaint, the Order sought to emphasise extensively the dangerous and unscientific nature of the comments made by the complainant. The controller made two arguments in its defence, firstly, that the subject had already made the information public himself, including a reference to the summons he received. Therefore, he had already, by his own volition, given direct and unconditional consent to the disclosure of the personal data being processed. Secondly, the communication of the information by the Order was a necessary action for the protection of public health, threatened by the serious, dangerous, and unscientific positions of the complainant.
Holding
Issuing its decision, the Italian DPA addressed the two arguments put forward by the controller.
Concerning the first argument (the data subject had already made the information public), without prejudice to any disclosure or statements made by the data subject, public entities such as the order may only disclose personal data where permitted by the legal framework of reference. In this regard, Italian law provides only for the processing, by means of an entry into the register, of the existence of a measure affecting the exercise of the profession, while information related to the mere commencement of disciplinary proceedings remains subject to a confidentiality regime for the protection of the professional conduct (Personal Data Protection Code, Article 61(2)).
With regards to the second argument (duty to protect public health), the DPA held that the Order could have communicated the public health message without making a particular reference to the professional concerned.
In light of all of the above, the DPA found that the Order had violated Articles 5(1)(a) and 6 GDPR. In determining the adoption of corrective powers, the authority took into account the complainant’s public statements, the aim of the Order to protect public health, the cooperation with the authority, and the fact there are have been previous infringements. Therefore, the DPA considered this to be a “minor breach” of the regulation and reprimanded the order for the infringements stated above, and also stating that there are no grounds to impose further measures.
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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 no. 9855545]
Provision of December 15, 2022
Register of measures
no. 418 of 15 December 2022
THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA
IN today's meeting, which was attended by prof. Pasquale Stanzione, president, prof.ssa Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer. Guido Scorza, components and the cons. Fabio Mattei, general secretary;
HAVING REGARD TO Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, concerning the protection of natural persons with regard to the processing of personal data, as well as the free movement of such data and repealing Directive 95/46/ CE, “General Data Protection Regulation” (hereinafter, “Regulation”);
HAVING REGARD TO Legislative Decree 30 June 2003, n. 196 containing the "Code regarding the protection of personal data, containing provisions for the adaptation of the national legal system to Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, relating to the protection of natural persons with regard to the processing of personal data, as well as to the free movement of such data and which repeals Directive 95/46/EC (hereinafter the "Code");
CONSIDERING the Regulation n. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor for the protection of personal data, approved with resolution no. 98 of 4 April 2019, published in the Official Gazette no. 106 of 8 May 2019 and in www.gpdp.it, doc. web no. 9107633 (hereinafter "Regulation of the Guarantor n. 1/2019");
Given the documentation in the deeds;
Given the observations made by the general secretary pursuant to art. 15 of the Regulation of the Guarantor n. 1/2000 on the organization and functioning of the Guarantor's office for the protection of personal data, doc. web no. 1098801;
Speaker Dr. Agostino Ghiglia;
WHEREAS
1. Introduction.
With a complaint presented pursuant to art. 77 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation"), a doctor registered with the Rome Provincial Order of Surgeons and Dentists (hereinafter, the "Order") represented that, following his own critical statements regarding certain vaccination obligations established by law, the Order, in the months of May and July XX, would have notified him of the convocation pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221, to acquire preliminary information regarding one's own conduct, for the purposes of the possible opening of a disciplinary proceeding against one's own.
The complainant then complained that, during some television broadcasts ("Piazza Pulita" of the XX; "Piazza Pulita" of the XX" and "Non è l'Arena" of the XX), the President of the Order would have issued statements on the matter to the aforesaid initiatives taken by the Order in its regard.
Furthermore, the fact that, on the 20th date, the Order would have published a press release on its institutional website was complained of, in which it was reported that the Order had already taken initiatives against the claimant and that the himself would be summoned shortly to acquire information.
2. The preliminary investigation.
In response to a request for information from this Authority (note prot. XX of XX), the Order, with note prot. no. XX of the XX, declared, in particular, that:
"[l]Order received numerous reports from various subjects who denounced, worried, the positions publicly taken by the complainant [...] (general practitioner) in support of denial theses of the usefulness of using personal protective equipment - advising against their use - of vaccines against Covid 19 as well as tampons, thus placing themselves in stark contrast with the guidelines of the international scientific community, with the national and regional legislation ratione temporis in force";
"with a note of the XX (prot. n. XX), the [complainant] was then summoned to the headquarters of the Entity, to be heard pursuant to art. 39, paragraph I, of the Presidential Decree 5 April 1950, no. 221, regarding the aforementioned facts. Furthermore, taking into account the current emergency situation, the same was invited to behave in a manner characterized by greater prudence in the release of statements published on social networks, in accordance with the rules of ethics”;
as a result of a further report received by the Order, the "note of the XX (prot. n. XX)" followed, with which the Order called again the professional;
"despite the recommendations of the Order Authority, the public presence, on the web and on social media channels of the [complainant] became increasingly assiduous and his theses contrary to the discipline identified by law and science as the correct way to manage the pandemic were punctually exacerbated with public accusatory positions”;
"faced with such an unlawful attitude, the Order activated the disciplinary procedures established by law of which the [complainant] publicly reported: with an interview published on the 20th day by Il Messaggero, the newspaper published that the [complainant] was one of the doctors who ended up under disciplinary proceedings by the OMCeO of Rome and in response to the journalist's question "[surname of the complainant], do you know that you risk radiation?" the doctor confirmed the existence of the disciplinary procedure by replying "the Order asked me for clarification, I replied, that's it"; likewise, with a declaration to Adn Kronos of the XX the [claimant] disclosed his disciplinary involvement stating that "I was called by the OMC Rome because there were reports and I replied to what they contested me, that's all"";
during the television program ""PIAZZA PULITA" broadcast on La7 il XX", during which the [complainant] presented theses not shared by the Order, "the interview of [...] the President of the [was [...] broadcast Order], in which he commented on the conduct of the [claimant] limiting himself to arguing that "the doctor must respect the laws of the state [...] If I have to call him to trial, then I will hear what are the proofs with which he demonstrates that the doctors were forced to kill " [...]";
"considering the gravity of the [...] complainant's conduct, having assessed the danger of being able to convince even just one of his patients with his unfounded and anti-scientific theses, and having also analyzed the prerogatives that the law reserved for the Orders, it was decided to reassure the community about the legal obligations that the Order was fulfilling to protect public health through the publication on its website of the press release of the XX";
"the [complainant], on the 20th date, further lent himself to the media limelight by taking part in the television program "NOT IT'S THE ARENA", broadcast on LA7, during which [...] he reaffirmed his positions";
some further declarations of the [complainant] were proposed during the "television broadcast of LA7 NOT THE ARENA del XX";
"in the same transmission the journalist, already aware of the involvement in the disciplinary dynamics of the [complainant] […] introduced the interview of the [President of the Order] stating "President, as a Medical Association you have initiated proceedings against the [surname of the complainant]"";
"focusing the interview on topics in the public domain made such by the owner himself ([, i.e., the [claimant]) of all rights to such information, in order to protect public health and make the institutional functions of the Order concretely operational, the President [...] reaffirmed exactly the information already made public by the [complainant], without revealing any element of confidentiality or that was covered by any protection";
"added the President, then, considerations of a general nature, noting that the action [of the] complainant could have been harmful to patients and to public health, even if only considering that suggesting not to wear a mask - well not to wear it at all - represents a serious matter [...]. The [Order] continued by communicating that the timing underlying the disciplinary procedures would be those established by law to guarantee a perfect hearing between the parties in the exercise of the reciprocal rights of defense guaranteed at the constitutional level, specifying the normative data on the consequences foreseen by the law , dismissal under the employer aspect (not the responsibility of the Order but of the ASL), and disbarment from the register as regards the relevance of orders”;
the action of the Order was aimed at "providing unitary indications and reassurances to the population based on the scientific evidence of the moment";
"the pandemic situation has in fact required to operate a constant balancing of interests from time to time even if only virtually opposing which in fact have unconditionally recognized a prevalence of the interest of public health over the rights of the individual";
the "President [...] [is] limited [to] reiterating, by his own word, what the [complainant] had already autonomously reported to the press, namely that the same would have been heard in the context of a proceeding initiated by the Order for statements he had made regarding vaccines”;
"the involvement of the President of the Order is completely residual and his intervention does not refer to any disciplinary involvement of the [complainant]";
"avoiding the accreditation of curative and preventive solutions other than those proposed by the world scientific community, harmful as such for the entire community or even for a single patient, represented - and still represents - a specific and inalienable prerogative of the [Order] to be achieved and implemented in a prearranged way, if necessary, with respect to the protection needs declared by the [complainant]";
“the legitimacy of the data processing carried out is immediately traceable in the provisions of art. 6 of the [Regulation] [...] (see letter c), d) and e) paragraph 1 [...]) [e] Recital 45 and, above all, 46 of the [Regulation] [...]";
"[...] the protection [of the right to data protection] is always to be ensured after balancing it with other interests and with other subjective legal positions, hypothetically conflicting with them [...] This primacy, in the present case, can only be "assigned" to the protection of public health, pursuant to art. 35 of the Charter of Fundamental Rights of the European Union";
"therefore, the confirmation on television and on the web of the existence of a disciplinary practice on the part of the [complainant] (in any case occurring after that carried out by the interested party himself) represented a tool for "keeping the evolution of epidemics under control and the their diffusion […]”.
Subsequently, the Order communicated to the Authority that it had taken steps to remove the press release subject to the complaint from its institutional website (see note prot. n. XX of XX).
With a note of the XX (prot. n. XX), the Office, on the basis of the elements acquired, the checks carried out and the facts that emerged following the preliminary investigation, notified the Order, pursuant to art. 166, paragraph 5, of the Code, the initiation of the procedure for the adoption of the provisions pursuant to art. 58, par. 2, of the Regulation, concerning the alleged violations of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), inviting the aforementioned Order to produce defense writings or documents to the Guarantor or to ask to be heard by the Authority (art. 166, paragraphs 6 and 7, of the Code, as well as art. 18, paragraph 1, of the law of 24 November 1981, n. 689).
With note dated XX (prot. Guarantor n. XX), the Order presented its defense brief, declaring, in particular, that:
the complainant "had already voluntarily made public the summons to the [Order] [...] thus arranging, through his free expression of will to the dissemination of this information in the press, a direct and unconditional consent to the disclosure of personal data object of treatment (pre-disciplinary involvement) [...]";
"the confidentiality of the personal data subject to the complaint has not been violated at all since the identifying link between the information disseminated (pre-disciplinary involvement) and the interested party [...] was [...] made by the interested party himself already from the month of XX, and therefore on a date well before the web release and the televised declarations of the [President of the Order] which took place only in the months of XX”;
"the communication of the [complainant's] involvement in order checks, this information in the public domain, was in any case a dutiful action for the protection of public health - a functional prerogative, this, assigned by law to doctors' orders - threatened by serious and dangerous anti-scientific positions of the complainant who publicly and insistently professed so-called No-Vax theses, also concretely putting in place conduct during his institutional role (in question of general practitioner in agreement with the NHS) contrary to the ratione temporis laws in force";
"Territorial Orders are by law (see Law No. 3/2018), as subsidiary bodies of the State, devoted to the power of public interests connected to the exercise of the medical profession, having to finalize that ontological prerogative of guaranteeing individual and public health";
"among the representative duties of this legal obligation there cannot fail to be that of alerting the community about the danger caused by one of its members, reassuring users and medical colleagues about the danger caused by one of its members, reassuring users and medical colleagues about the actual presence of the Order which, as proof of the guarantee of the public function entrusted to it, confirms that against positions contrary to public health, such as those expressed by the [complainant], the Order is present and will implement any envisaged action by the law, not least of the one to warn that disciplinary sanctions are also foreseen in the face of such anti-scientific positions";
"the Code itself recalls that the treatment (dissemination, in the case that concerns us) is always permitted if necessary for the fulfillment of a task carried out in the public interest or for the exercise of public powers attributed to it [...] [It subsisted, in the present case] the need to protect public health and this, if necessary, even to the detriment of the individual's interest in confidentiality, [i.e. the complainant], who with his anti-vaccination proselytism action, however does not limited to mere statements - albeit public ones - but even materialized with real actions to convince their patients (over 6000) it attacked, undermining it, the guarantee of protection of public health”;
"it cannot be denied that the positions of the [complainant], contrary to all the dictates of the international scientific community, could well endanger a large number of patients, so that the public interest of the action of the Capitoline [Order], which confirmed the initiation of verification procedures, it is entirely legitimate and a prerequisite for the protection of a public interest, much more important than the individual's right to privacy - nonetheless non-existent in the case in question since it has already been disclosed by the interested party himself”;
it is necessary to consider the "emergency context which has actually blown up every scheme, inserting the control actions - increasingly and even more so the institutional ones - in a context of "precautionary" protection";
"in the transmission of the XX1, the involvement of the President of the Order is completely residual and his intervention does not refer to any disciplinary involvement of the [complainant] ("the doctor must respect the laws of the state [...] If I have to call him to trial then I will hear what evidence demonstrates that the doctors were forced to kill” (cf. min. 1:58:36 to min. 1:59:17 […]”;
"in the episode of the XX, given that the [complainant] himself had already made public his disciplinary involvement in the XX with an interview with Il Messaggero of the XX and with a declaration to Adn Kronos of the XX, the interviewing journalist introduced the intervention of the [President of the Order] assuming that the Order had complied with its role ("President, as a Medical Association you have initiated proceedings against the [claimant]" (cf. min . 1:15:42 [...]) achieving mere confirmation of the President who exactly reaffirmed the information already made public by the [complainant], without revealing any element of confidentiality or that was covered by any protection";
"there followed considerations of a general nature to specify that the public a-scientific position of the [complainant] could have been harmful to patients and to public health, even if only considering that suggesting not to wear a mask - and not to wear one at all - represented a serious fact (cf. [...] min. 1:15:43 to min 1:16:33)”
"therefore, the television and web confirmation of the existence of an order file by the [complainant] (in any case occurring after the news given to that effect by the interested party himself) represented a tool for "keeping the evolution of epidemics and their diffusion”, thus finding its legal basis in art. 6 [of the Regulation], especially in the light of the aforementioned Recital 46";
in any case, it is necessary to consider "the institutional good faith of the Body which operated for the exclusive purpose of protecting public health, also evaluating the legal-normative novelty of the application management of the discipline of the [Regulation] in a pandemic-emergency context like the current one".
During the hearing, requested pursuant to art. 166, paragraph 6, of the Code and held on the XX date (minutes prot. n. XX of the XX), the Order declared, in particular, that:
"in the month of XX, the same complainant had disseminated the information that the Order had summoned the complainant to obtain preliminary information and that precisely in the light of these statements the President of the Order had been invited to participate in some television broadcasts to be interviewed about it”;
"already in the 20th century the complainant had issued statements with regard to the events that had affected him";
"the Order, as a subsidiary body of the State, whose objective is to protect the health of citizens, had the obligation to reassure the population regarding what was declared by the interested party, pursuing the public interest of countering the pandemic and convey correct information to the public, reassuring the same about the active role of the Order in reacting in the event of anti-scientific positions by its members”;
"the President of the Order would never have participated in television broadcasts and would never have revealed information relating to a disciplinary procedure, if the interested party himself had not made public statements in this regard";
"the facts object of the complaint took place in the emergency context, in which the Order, like all other public subjects, had to act, in total good faith and always in pursuit of the public interest, in a context not only of extreme seriousness but also of high legal complexity, in which numerous delicate choices were made in a short time. The Order has maintained total confidentiality on the proceedings initiated against the members and has only disclosed information that had already been disclosed to the public by the interested party, responding to specific requests from journalists, who evidently already knew the involvement of the [claimant] by order ”;
"the complainant himself, actively participating in the television broadcasts in question, wanted to bring his case to the attention of public opinion, accepting the television confrontation and the inevitable disclosure of his personal data".
3. Outcome of the preliminary investigation.
On the basis of what emerged during the preliminary investigation, it is ascertained that the Order has disseminated information relating to the initiatives it has taken against the complainant for the purposes of the possible initiation of a disciplinary procedure, both through the publication of a press release on its own institutional website and following statements made by the President of the Order during some television broadcasts.
In particular, on the 20th date, the Order published a press release on its institutional website, bearing the following text: "the Order of Doctors of Rome opened a file on [name and surname of the complainant] already last year, the procedures have technical times to be respected. We also had elections here in the Order, which slowed down the practice a bit. But certainly soon, within the month of February, [surname of the complainant] will be summoned to answer some questions". Thus the president of the Medical Association of Rome, [...], regarding [name and surname of the complainant] , the doctor of [...] now known for his positions against the anti-Covid vaccine. "His procedure has slowed down also due to the recent statements he made on TV - [the President of the Order] explains again - those will also need to be evaluated. Certainly the Council of the Order will analyze those videos and evaluate if there are the conditions to send it to the disciplinary commission. Obviously [surname of the complainant] will then have the right to reply"".
Subsequently, during the twentieth century television broadcast "Piazza Pulita", the President of the Order stated that "[...] we paid attention to Dr. [surname of the complainant] complaints have already arrived since last year, so we have set in motion the whole investigation [...] I can already tell you that next Monday dr. [complainant's surname] is summoned to the Medical Association in order to answer some questions regarding his behavior and what he says" (see video of the transmission to the file).
Finally, during the 20th television broadcast "Non è l'Arena", the President of the Order declared that "already last year we received several complaints regarding Dr. [complainant's surname] both from colleagues and patients, for whom we have already activated certain procedures; Last Monday I summoned him, I asked him specific questions and I gave him ten days to give a written response on the objections we make to him [...] I think that maximum for the month of March we should close the case" (see video of the submission to the file).
Thus reconstructed the facts subject of the complaint, it is noted that, pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221, "when there are facts that may form the subject of disciplinary proceedings, the president, summarily verifying the circumstances, assumes the appropriate information and, after having understood the doctor, reports to the Council for the consequent resolutions" (see the note of the Order n. XX of the XX, in the file, with which the same invited the complainant to present himself at the headquarters of the Order to be heard in accordance with the aforementioned provision).
All phases of the disciplinary procedure, including those prodromal to the same, must take place in compliance with the confidentiality of the professional involved, in compliance with the legislation on the protection of personal data, until the conclusion of the same. Only if, following the outcome of the disciplinary procedure, a disciplinary measure is actually adopted, which in any way affects the exercise of the profession, is it permitted to mention it in the register, even online, in compliance with the applicable regulations (see art. 61, paragraph 2, of the Code).
On the other hand, no provision of the law provides for the publication or other forms of dissemination of information relating to a disciplinary procedure against a professional registered in the register or to the prodromal phases to the start of the same, as in the case of the summary investigation conducted by the President of the Order through the acquisition of information from the professional concerned pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221.
As for the thesis put forward by the Order, according to which a violation of the legislation on the protection of personal data cannot arise when information already clearly made public by the interested party is disseminated, the following must be considered.
In an article published by the masthead "Il Messaggero" on the 20th date, deposited in deeds by the Order, the complainant, in response to a specific question from the journalist ("[surname of the complainant], do you know that he risks radiation?"), replied as follows: “the Order asked me for clarification, I replied, that's it”. The journalist replied by saying "the president of the Order, [...], says that the proceeding is open. And that denier doctors will be disbarred", and the complainant replied that "if this were the case, I would appeal".
In a subsequent article published by the newspaper "Adnkronos" on the twentieth date, deposited in deeds by the Order, we also read the following: "to speak to Adnkronos Salute is [name and surname of the complainant], doctor of [...] , who was reported to the Order of Doctors of the Capital, together with 2 other colleagues, for the claims against the Sars-CoV-2 coronavirus vaccine. "I was called by Omceo Rome because there were reports and I responded to what they contested, that's all. I'm not a no-vax," he clarifies.
Although the fact that the claimant had voluntarily disclosed his involvement in the Order's initiatives to the press – well before the publication of the Order's press release and the statements made by the President of the Order during the aforementioned television broadcasts – is confirmed by the documentation in the , however, it must be pointed out that, as clarified in numerous decisions by the Guarantor, public subjects, such as the Order, can disclose personal data only where permitted by the legal framework of reference (see art. 2-ter, paragraphs 1 and 3 of the Code, in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), notwithstanding that the same data may have been made public elsewhere for other purposes, including by the interested party himself (see, from last, provision February 10, 2022, n. 45, web doc. n. 9751549, and the precedents cited therein).
In fact, they are the specific sector regulations that govern the cases and methods of publication, by public entities, of information referring to natural persons or of administrative documents containing the same, operating upstream the necessary balancing of interests between the needs of transparency and the right to the protection of the personal data of the subjects concerned, as well as identifying the specific methods of publication deemed compliant, in particular, with the principles of purpose limitation and data minimisation. In the present case, as illustrated above, the art. 61, paragraph 2, of the Code provides for the sole publication, by annotation on the register, of the existence of a provision that affects the exercise of the profession, while remaining, however, the information relating to the mere initiation of a disciplinary procedure (or, as in the present case, to the adoption of initiatives only prodromal to the possible start of the same) subject to a regime of confidentiality, to protect the professional concerned.
During the preliminary investigation, the Order also advanced the thesis according to which the dissemination of information relating to the ordinance initiatives, taken against the complainant, would have been necessary in order to protect public health and counter the pandemic from SARS-CoV-2, publicly censuring the claimant's theses deemed anti-scientific. Given that some of the statements made by the President of the Order in the context of the aforementioned television broadcasts can be considered attributable to the exercise, on an individual basis, of the right to free expression of thought (cf. articles 85 of the Regulation and 136 et seq. of the Code; see the television program "Piazza Pulita" of the XX, during which the President states the following: "these are very serious statements [...] I personally can consider them very serious, [as regards] the Order of the Doctors will be the Doctors Commission that will decide [...]"), in this regard it is noted that the Order could well have made public its position regarding these theses, which it considers anti-scientific and a source of danger to public health in the context pandemic, without making explicit reference to the individual position of the interested party, equally effectively pursuing their objectives of protecting the community, without harming the sphere of confidentiality of the interested party, who at the time of the facts subject of the complaint was not, however, the recipient of any disciplinary measure by the Order.
In the light of all the considerations set out above, it must be concluded that the Order, by publishing the press release in question on its institutional website and issuing, in the person of its President, the aforesaid declarations during the television broadcasts of the 20th century, has disseminated information relating to the initiatives taken by it towards the complainant, for the purposes of the possible initiation of a disciplinary procedure, in a manner that does not comply with the principle of "lawfulness, correctness and transparency" and in the absence of a legal basis, in violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021).
With regard, however, to the television broadcast of the XX, also the subject of a complaint, it is noted that, on that occasion, in the presence of the same complainant, the President of the Order, in a pre-recorded video, answering a question from a journalist, is limited to making a generic reference to the abstract possibility that the Order could be called to evaluate the professional's conduct on a deontological level ("if I have to sue him then I will hear what the evidence is [...]"; see video of the transmission to the deeds). No information in relation to the initiatives actually taken towards the interested party was, therefore, disseminated, in this context, by the President of the Order, therefore having to arrange, limited to this specific profile, the filing of the complaint.
4. Conclusions.
In the light of the assessments referred to above, it should be noted that the statements made by the data controller during the preliminary investigation ˗ the truthfulness of which may be called upon to answer pursuant to art. 168 of the Code ˗, although worthy of consideration, do not allow overcoming the findings notified by the Office with the act of initiation of the procedure and are insufficient to allow the closure of the present procedure, since none of the cases provided for by the 'art. 11 of the Regulation of the Guarantor n. 1/2019.
Therefore, the preliminary assessments of the Office are confirmed and the illegality of the processing of personal data carried out for the Order is noted, for having disseminated personal data of the interested party in a manner that does not comply with the principle of "lawfulness, correctness and transparency" and in the absence of a legal basis, in violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021).
That said, taking into account that:
the processing concerned personal data not belonging to particular categories, relating to a single interested party;
the personal data disclosed by the Order had been made public through press articles prior to the events subject to the complaint;
even if the President had responded to the journalists' requests by illustrating the possible disciplinary consequences, in the face of conduct similar to that which is the subject of the complaint, in only general and abstract terms, without referring to the specific initiatives already taken by the Order towards the complainant, however, information relating to the specific case of the complainant would have been disclosed, albeit implicitly. On the other hand, the complainant has voluntarily chosen to participate in the television broadcast of the XX, accepting the inevitable consequence that his case was the subject of a public debate, also with regard to the deontological implications of his statements, and that considerations made by the guests of the transmission could, even implicitly, concern one's individual position;
the abstract relevance on the disciplinary level of the conduct of the interested party could in any case be considered easily foreseeable by the television audience (see the television broadcast of the XX, whose partial recording is in the records, in which the then Deputy Minister of Health, a guest in the studio, after viewing the service relating to the complainant's case, he exclaims "this thing is incommensurable [...] if the Order will see it [...]");
the Order has acted, within the delicate context of the SARS-CoV-2 pandemic, with the declared aim of protecting - even in the absence of an appropriate legal basis - public health and contributing to the containment of the pandemic, in the belief that the dissemination of the complainant's personal data could be based on the need to perform one's own task in the public interest, therefore, the violation having a culpable nature;
the Order proceeded to interrupt the publication of the press release in question following the start of the investigation and cooperated proactively with the Authority during the same;
there are no previous relevant violations committed by the data controller, having the same nature as those ascertained in relation to the complaints, or previous provisions pursuant to art. 58 of the Regulation;
the circumstances of the specific case lead to qualifying the same as a "minor violation", pursuant to cons. 148 of the Regulation and the “Guidelines concerning the application and provision of administrative fines for the purposes of regulation (EU) no. 2016/679”, adopted by the Art. 29 Working Group on 3 October 2017, WP 253, and endorsed by the European Data Protection Board with the “Endorsement 1/2018” of 25 May 2018.
In the light of all of the above, and of the overall terms of the matter in question, it is therefore considered sufficient to admonish the data controller for the violation of the aforementioned provisions, pursuant to art. 58, par. 2, lit. b), of the Regulation (see also cons. 148 of the Regulation).
Considering the assurances provided by the owner regarding the cessation of publication of the press release subject to the complaint, the conditions for the adoption of further corrective measures pursuant to art. 58, par. 2, of the Regulation.
Finally, it should be noted that the conditions pursuant to art. 17 of regulation no. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor.
ALL THIS CONSIDERING THE GUARANTOR
a) declares, pursuant to art. 57, par. 1, lit. f), of the Regulation, the illegality of the processing carried out by the Rome Provincial Order of Surgeons and Dentists, with registered office in Via Giovan Battista De Rossi 9 - 00161 Rome (RM), Tax Code 02604980587, for violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), in the terms referred to in the justification;
b) pursuant to art. 58, par. 2, lit. b) of the Regulation, admonishes the Rome Provincial Order of Surgeons and Dentists, as data controller in question, for having violated the articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), as described above;
c) believes that the conditions pursuant to art. 17 of Regulation no. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor.
Pursuant to articles 78 of the Regulation, 152 of the Code and 10 of Legislative Decree no. 150/2011, against this provision it is possible to lodge an appeal before the ordinary judicial authority, under penalty of inadmissibility, within thirty days from the date of communication of the provision itself or within sixty days if the appellant resides abroad.
Rome, 15 December 2022
PRESIDENT
station
THE SPEAKER
guille
THE SECRETARY GENERAL
Matthew
[doc. web no. 9855545]
Provision of December 15, 2022
Register of measures
no. 418 of 15 December 2022
THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA
IN today's meeting, which was attended by prof. Pasquale Stanzione, president, prof.ssa Ginevra Cerrina Feroni, vice president, dr. Agostino Ghiglia and the lawyer. Guido Scorza, components and the cons. Fabio Mattei, general secretary;
HAVING REGARD TO Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, concerning the protection of natural persons with regard to the processing of personal data, as well as the free movement of such data and repealing Directive 95/46/ CE, “General Data Protection Regulation” (hereinafter, “Regulation”);
HAVING REGARD TO Legislative Decree 30 June 2003, n. 196 containing the "Code regarding the protection of personal data, containing provisions for the adaptation of the national legal system to Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, relating to the protection of natural persons with regard to the processing of personal data, as well as to the free movement of such data and which repeals Directive 95/46/EC (hereinafter the "Code");
CONSIDERING the Regulation n. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor for the protection of personal data, approved with resolution no. 98 of 4 April 2019, published in the Official Gazette no. 106 of 8 May 2019 and in www.gpdp.it, doc. web no. 9107633 (hereinafter "Regulation of the Guarantor n. 1/2019");
Given the documentation in the deeds;
Given the observations made by the general secretary pursuant to art. 15 of the Regulation of the Guarantor n. 1/2000 on the organization and functioning of the Guarantor's office for the protection of personal data, doc. web no. 1098801;
Speaker Dr. Agostino Ghiglia;
WHEREAS
1. Introduction.
With a complaint presented pursuant to art. 77 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter, the "Regulation"), a doctor registered with the Rome Provincial Order of Surgeons and Dentists (hereinafter, the "Order") represented that, following his own critical statements regarding certain vaccination obligations established by law, the Order, in the months of May and July XX, would have notified him of the convocation pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221, to acquire preliminary information regarding one's own conduct, for the purposes of the possible opening of a disciplinary proceeding against one's own.
The complainant then complained that, during some television broadcasts ("Piazza Pulita" of the XX; "Piazza Pulita" of the XX" and "Non è l'Arena" of the XX), the President of the Order would have issued statements on the matter to the aforesaid initiatives taken by the Order in its regard.
Furthermore, the fact that, on the 20th date, the Order would have published a press release on its institutional website was complained of, in which it was reported that the Order had already taken initiatives against the claimant and that the himself would be summoned shortly to acquire information.
2. The preliminary investigation.
In response to a request for information from this Authority (note prot. XX of XX), the Order, with note prot. no. XX of the XX, declared, in particular, that:
"[l]Order received numerous reports from various subjects who denounced, worried, the positions publicly taken by the complainant [...] (general practitioner) in support of denial theses of the usefulness of using personal protective equipment - advising against their use - of vaccines against Covid 19 as well as tampons, thus placing themselves in stark contrast with the guidelines of the international scientific community, with the national and regional legislation ratione temporis in force";
"with a note of the XX (prot. n. XX), the [complainant] was then summoned to the headquarters of the Entity, to be heard pursuant to art. 39, paragraph I, of the Presidential Decree 5 April 1950, no. 221, regarding the aforementioned facts. Furthermore, taking into account the current emergency situation, the same was invited to behave in a manner characterized by greater prudence in the release of statements published on social networks, in accordance with the rules of ethics";
as a result of a further report received by the Order, the "note of the XX (prot. n. XX)" followed, with which the Order called again the professional;
"despite the recommendations of the Order Authority, the public presence, on the web and on social media channels of the [complainant] became increasingly assiduous and his theses contrary to the discipline identified by law and science as the correct way to manage the pandemic were punctually exacerbated with public accusatory positions”;
"faced with such an unlawful attitude, the Order activated the disciplinary procedures established by law of which the [complainant] publicly reported: with an interview published on the 20th day by Il Messaggero, the newspaper published that the [complainant] was one of the doctors who ended up under disciplinary proceedings by the OMCeO of Rome and in response to the journalist's question "[surname of the complainant], do you know that you risk radiation?" the doctor confirmed the existence of the disciplinary procedure by replying "the Order asked me for clarification, I replied, that's it"; likewise, with a declaration to Adn Kronos of the XX the [claimant] disclosed his disciplinary involvement stating that "I was called by the OMC Rome because there were reports and I replied to what they contested me, that's all"";
during the television program ""PIAZZA PULITA" broadcast on La7 il XX", during which the [complainant] presented theses not shared by the Order, "the interview of [...] the President of the [was [...] broadcast Order], in which he commented on the conduct of the [claimant] limiting himself to arguing that "the doctor must respect the laws of the state [...] If I have to call him to trial, then I will hear what are the proofs with which he demonstrates that the doctors were forced to kill " [...]";
"considering the gravity of the [...] complainant's conduct, having assessed the danger of being able to convince even just one of his patients with his unfounded and anti-scientific theses, and having also analyzed the prerogatives that the law reserved for the Orders, it was decided to reassure the community about the obligations of law that the Order was complying with to protect public health through the publication on its website of the communiqué of the XX";
"the [complainant], on the 20th date, further lent himself to the media limelight by taking part in the television program "NOT IT'S THE ARENA", broadcast on LA7, during which [...] he reaffirmed his positions";
some further declarations of the [complainant] were proposed during the "television broadcast of LA7 NOT THE ARENA del XX";
"in the same transmission the journalist, already aware of the involvement in the disciplinary dynamics of the [complainant] […] introduced the interview of the [President of the Order] stating "President, as a Medical Association you have initiated proceedings against the [surname of the complainant]"";
"focusing the interview on topics in the public domain made such by the owner himself ([, i.e., the [claimant]) of all rights to such information, in order to protect public health and make the institutional functions of the Order concretely operational, the President [...] reaffirmed exactly the information already made public by the [complainant], without revealing any element of confidentiality or that was covered by any protection";
"added the President, then, considerations of a general nature, noting that the action [of the] complainant could have been harmful to patients and to public health, even if only considering that suggesting not to wear a mask - well not to wear it at all - represents a serious matter [...]. The [Order] continued by communicating that the timing underlying the disciplinary procedures would be those established by law to guarantee a perfect hearing between the parties in the exercise of the reciprocal rights of defense guaranteed at the constitutional level, specifying the normative data on the consequences foreseen by the law , dismissal under the employer aspect (not the responsibility of the Order but of the ASL), and disbarment from the register as regards the relevance of orders”;
the action of the Order was aimed at "providing unitary indications and reassurances to the population based on the scientific evidence of the moment";
"the pandemic situation has in fact required to operate a constant balancing of interests from time to time even if only virtually opposing which in fact have unconditionally recognized a prevalence of the interest of public health over the rights of the individual";
the "President [...] [is] limited [to] reiterating, by his own word, what the [complainant] had already autonomously reported to the press, namely that the same would have been heard in the context of a proceeding initiated by the Order for statements he had made regarding vaccines”;
"the involvement of the President of the Order is completely residual and his intervention does not refer to any disciplinary involvement of the [complainant]";
"avoiding the accreditation of curative and preventive solutions other than those proposed by the world scientific community, harmful as such for the entire community or even for a single patient, represented - and still represents - a specific and inalienable prerogative of the [Order] to be achieved and implemented in a prearranged way, if necessary, with respect to the protection needs declared by the [complainant]";
“the legitimacy of the data processing carried out is immediately traceable in the provisions of art. 6 of the [Regulation] [...] (see letter c), d) and e) paragraph 1 [...]) [e] Recital 45 and, above all, 46 of the [Regulation] [...]";
"[...] the protection [of the right to data protection] is always to be ensured after balancing it with other interests and with other subjective legal positions, hypothetically conflicting with them [...] This primacy, in the present case, can only be "assigned" to the protection of public health, pursuant to art. 35 of the Charter of Fundamental Rights of the European Union”;
"therefore, the confirmation on television and on the web of the existence of a disciplinary practice on the part of the [complainant] (in any case occurring after that carried out by the interested party himself) represented a tool for "keeping the evolution of epidemics under control and the their diffusion […]”.
Subsequently, the Order communicated to the Authority that it had taken steps to remove the press release subject to the complaint from its institutional website (see note prot. n. XX of XX).
With a note of the XX (prot. n. XX), the Office, on the basis of the elements acquired, the checks carried out and the facts that emerged following the preliminary investigation, notified the Order, pursuant to art. 166, paragraph 5, of the Code, the initiation of the procedure for the adoption of the provisions pursuant to art. 58, par. 2, of the Regulation, concerning the alleged violations of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), inviting the aforementioned Order to produce defense writings or documents to the Guarantor or to ask to be heard by the Authority (art. 166, paragraphs 6 and 7, of the Code, as well as art. 18, paragraph 1, of the law of 24 November 1981, n. 689).
With note dated XX (prot. Guarantor n. XX), the Order presented its defense brief, declaring, in particular, that:
the complainant "had already voluntarily made public the summons to the [Order] [...] thus arranging, through his free expression of will to the dissemination of this information in the press, a direct and unconditional consent to the disclosure of personal data object of treatment (pre-disciplinary involvement) [...]";
"the confidentiality of the personal data subject to the complaint has not been violated at all since the identifying link between the information disseminated (pre-disciplinary involvement) and the interested party [...] was [...] made by the interested party himself already from the month of XX, and therefore on a date well before the web release and the televised declarations of the [President of the Order] which took place only in the months of XX”;
"the communication of the [complainant's] involvement in order checks, this information in the public domain, was in any case a dutiful action for the protection of public health - a functional prerogative, this, assigned by law to doctors' orders - threatened by serious and dangerous anti-scientific positions of the complainant who publicly and insistently professed so-called No-Vax theses, also concretely putting in place conduct during his institutional role (in question of general practitioner in agreement with the NHS) contrary to the ratione temporis laws in force";
"Territorial Orders are by law (see Law No. 3/2018), as subsidiary bodies of the State, devoted to the power of public interests connected to the exercise of the medical profession, having to finalize that ontological prerogative of guaranteeing individual and public health";
"among the representative duties of this legal obligation there cannot fail to be that of alerting the community about the danger caused by one of its members, reassuring users and medical colleagues about the danger caused by one of its members, reassuring users and medical colleagues about the actual presence of the Order which, as proof of the guarantee of the public function entrusted to it, confirms that against positions contrary to public health, such as those expressed by the [complainant], the Order is present and will implement any envisaged action by the law, not least of the one to warn that disciplinary sanctions are also foreseen in the face of such anti-scientific positions";
"the Code itself recalls that the treatment (dissemination, in the case that concerns us) is always permitted if necessary for the fulfillment of a task carried out in the public interest or for the exercise of public powers attributed to it [...] [It subsisted, in the present case] the need to protect public health and this, if necessary, even to the detriment of the individual's interest in confidentiality, [i.e. the complainant], who with his anti-vaccination proselytism action, however does not limited to mere statements - albeit public ones - but even materialized with real actions to convince their patients (over 6000) it attacked, undermining it, the guarantee of protection of public health";
"it cannot be denied that the positions of the [complainant], contrary to all the dictates of the international scientific community, could well endanger a large number of patients, so that the public interest of the action of the Capitoline [Order], which confirmed the initiation of verification procedures, it is entirely legitimate and a prerequisite for the protection of a public interest, much more important than the individual's right to privacy - nonetheless non-existent in the case in question since it has already been disclosed by the interested party himself”;
it is necessary to consider the "emergency context which has actually blown up every scheme, inserting the control actions - increasingly and even more so the institutional ones - in a context of "precautionary" protection";
"in the transmission of the XX1, the involvement of the President of the Order is completely residual and his intervention does not refer to any disciplinary involvement of the [complainant] ("the doctor must respect the laws of the state [...] If I have to call him to trial then I will hear what evidence demonstrates that the doctors were forced to kill” (cf. min. 1:58:36 to min. 1:59:17 […]”;
"in the episode of the XX, given that the [complainant] himself had already made public his disciplinary involvement in the XX with an interview with Il Messaggero of the XX and with a declaration to Adn Kronos of the XX, the interviewing journalist introduced the intervention of the [President of the Order] assuming that the Order had complied with its role ("President, as a Medical Association you have initiated proceedings against the [claimant]" (cf. min . 1:15:42 [...]) achieving mere confirmation of the President who exactly reaffirmed the information already made public by the [complainant], without revealing any element of confidentiality or that was covered by any protection";
"there followed considerations of a general nature to specify that the public a-scientific position of the [complainant] could have been harmful to patients and to public health, even if only considering that suggesting not to wear a mask - and not to wear one at all - represented a serious fact (cf. [...] min. 1:15:43 to min 1:16:33)”
"therefore, the television and web confirmation of the existence of an order file by the [complainant] (in any case occurring after the news given to that effect by the interested party himself) represented a tool for "keeping the evolution of epidemics and their diffusion”, thus finding its legal basis in art. 6 [of the Regulation], especially in the light of the aforementioned Recital 46";
in any case, it is necessary to consider "the institutional good faith of the Body which operated for the exclusive purpose of protecting public health, also evaluating the legal-normative novelty of the application management of the discipline of the [Regulation] in a pandemic-emergency context like the current one".
During the hearing, requested pursuant to art. 166, paragraph 6, of the Code and held on the XX date (minutes prot. n. XX of the XX), the Order declared, in particular, that:
"in the month of XX, the same complainant had disseminated the information that the Order had summoned the complainant to obtain preliminary information and that precisely in the light of these statements the President of the Order had been invited to participate in some television broadcasts to be interviewed about it”;
"already in the 20th century the complainant had issued statements with regard to the events that had affected him";
"the Order, as a subsidiary body of the State, whose objective is to protect the health of citizens, had the obligation to reassure the population regarding what was declared by the interested party, pursuing the public interest of countering the pandemic and convey correct information to the public, reassuring the same about the active role of the Order in reacting in the event of anti-scientific positions by its members”;
"the President of the Order would never have participated in television broadcasts and would never have revealed information relating to a disciplinary procedure, if the interested party himself had not made public statements in this regard";
"the facts object of the complaint took place in the emergency context, in which the Order, like all other public subjects, had to act, in total good faith and always in pursuit of the public interest, in a context not only of extreme seriousness but also of high legal complexity, in which numerous delicate choices were made in a short time. The Order has maintained total confidentiality on the proceedings initiated against the members and has only disclosed information that had already been disclosed to the public by the interested party, responding to specific requests from journalists, who evidently already knew the involvement of the [claimant] by order ”;
"the complainant himself, actively participating in the television broadcasts in question, wanted to bring his case to the attention of public opinion, accepting the television confrontation and the inevitable disclosure of his personal data".
3. Outcome of the preliminary investigation.
On the basis of what emerged during the preliminary investigation, it is ascertained that the Order has disseminated information relating to the initiatives it has taken against the complainant for the purposes of the possible initiation of a disciplinary procedure, both through the publication of a press release on its own institutional website and following statements made by the President of the Order during some television broadcasts.
In particular, on the 20th date, the Order published a press release on its institutional website, bearing the following text: "the Order of Doctors of Rome opened a file on [name and surname of the complainant] already last year, the procedures have technical times to be respected. We also had elections here in the Order, which slowed down the practice a bit. But certainly soon, within the month of February, [surname of the complainant] will be summoned to answer some questions". Thus the president of the Medical Association of Rome, [...], regarding [name and surname of the complainant] , the doctor of [...] now known for his positions against the anti-Covid vaccine. "His procedure has slowed down also due to the recent statements he made on TV - [the President of the Order] explains again - those will also need to be evaluated. Certainly the Council of the Order will analyze those videos and evaluate if there are the conditions to send it to the disciplinary commission. Obviously [surname of the complainant] will then have the right to reply"".
Subsequently, during the twentieth century television broadcast "Piazza Pulita", the President of the Order stated that "[...] we paid attention to Dr. [surname of the complainant] complaints have already arrived since last year, so we have set in motion the whole investigation [...] I can already tell you that next Monday dr. [complainant's surname] is summoned to the Medical Association in order to answer some questions regarding his behavior and what he says" (see video of the transmission to the file).
Finally, during the 20th television broadcast "Non è l'Arena", the President of the Order declared that "already last year we received several complaints regarding Dr. [complainant's surname] both from colleagues and patients, for whom we have already activated certain procedures; Last Monday I summoned him, I asked him specific questions and I gave him ten days to give a written response on the objections we make to him [...] I think that maximum for the month of March we should close the case" (see video of the submission to the file).
Thus reconstructed the facts subject of the complaint, it is noted that, pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221, "when there are facts that may form the subject of disciplinary proceedings, the president, summarily verifying the circumstances, assumes the appropriate information and, after having understood the doctor, reports to the Council for the consequent resolutions" (see the note of the Order n. XX of the XX, in the file, with which the same invited the complainant to present himself at the headquarters of the Order to be heard in accordance with the aforementioned provision).
All phases of the disciplinary procedure, including those prodromal to the same, must take place in compliance with the confidentiality of the professional involved, in compliance with the legislation on the protection of personal data, until the conclusion of the same. Only if, following the outcome of the disciplinary procedure, a disciplinary measure is actually adopted, which in any way affects the exercise of the profession, is it permitted to mention it in the register, even online, in compliance with the applicable regulations (see art. 61, paragraph 2, of the Code).
On the other hand, no provision of the law provides for the publication or other forms of dissemination of information relating to a disciplinary procedure against a professional registered in the register or to the prodromal phases to the start of the same, as in the case of the summary investigation conducted by the President of the Order through the acquisition of information from the professional concerned pursuant to art. 39, paragraph 1, of the Presidential Decree 5 April 1950, no. 221.
As for the thesis put forward by the Order, according to which a violation of the legislation on the protection of personal data cannot arise when information already clearly made public by the interested party is disseminated, the following must be considered.
In an article published by the masthead "Il Messaggero" on the 20th date, deposited in deeds by the Order, the complainant, in response to a specific question from the journalist ("[surname of the complainant], do you know that he risks radiation?"), replied as follows: “the Order asked me for clarification, I replied, that's it”. The journalist replied by saying "the president of the Order, [...], says that the proceeding is open. And that denier doctors will be disbarred", and the complainant replied that "if this were the case, I would appeal".
In a subsequent article published by the newspaper "Adnkronos" on the twentieth date, deposited in deeds by the Order, we also read the following: "to speak to Adnkronos Salute is [name and surname of the complainant], doctor of [...] , who was reported to the Order of Doctors of the Capital, together with 2 other colleagues, for the claims against the Sars-CoV-2 coronavirus vaccine. "I was called by Omceo Rome because there were reports and I responded to what they contested, that's all. I'm not a no-vax," he clarifies.
Although the fact that the claimant had voluntarily disclosed his involvement in the Order's initiatives to the press – well before the publication of the Order's press release and the statements made by the President of the Order during the aforementioned television broadcasts – is confirmed by the documentation in the , however, it must be pointed out that, as clarified in numerous decisions by the Guarantor, public subjects, such as the Order, can disclose personal data only where permitted by the legal framework of reference (see art. 2-ter, paragraphs 1 and 3 of the Code, in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), notwithstanding that the same data may have been made public elsewhere for other purposes, including by the interested party himself (see, from last, provision February 10, 2022, n. 45, web doc. n. 9751549, and the precedents cited therein).
In fact, they are the specific sector regulations that govern the cases and methods of publication, by public entities, of information referring to natural persons or of administrative documents containing the same, operating upstream the necessary balancing of interests between the needs of transparency and the right to the protection of the personal data of the subjects concerned, as well as identifying the specific methods of publication deemed compliant, in particular, with the principles of purpose limitation and data minimisation. In the present case, as illustrated above, the art. 61, paragraph 2, of the Code provides for the sole publication, by annotation on the register, of the existence of a provision that affects the exercise of the profession, remaining, however, the information relating to the mere initiation of a disciplinary procedure (or, as in the present case, to the adoption of initiatives only prodromal to the possible start of the same) subject to a regime of confidentiality, to protect the professional concerned.
During the preliminary investigation, the Order also advanced the thesis according to which the dissemination of information relating to the ordinance initiatives, taken against the complainant, would have been necessary in order to protect public health and counter the pandemic from SARS-CoV-2, publicly censuring the claimant's theses deemed anti-scientific. Given that some of the statements made by the President of the Order in the context of the aforementioned television broadcasts can be considered attributable to the exercise, on an individual basis, of the right to free expression of thought (cf. articles 85 of the Regulation and 136 et seq. of the Code; see the television program "Piazza Pulita" of the XX, during which the President states the following: "these are very serious statements [...] I personally can consider them very serious, [as regards] the Order of the Doctors it will be the Doctors Commission that will decide [...]"), in this regard it is noted that the Order could well have made public its position regarding these theses, which it considers anti-scientific and a source of danger to public health in the context pandemic, without making explicit reference to the individual position of the interested party, equally effectively pursuing their objectives of protecting the community, without harming the sphere of confidentiality of the interested party, who at the time of the facts subject of the complaint was not, however, the recipient of any disciplinary measure by the Order.
In the light of all the considerations set out above, it must be concluded that the Order, by publishing the press release in question on its institutional website and issuing, in the person of its President, the aforesaid declarations during the television broadcasts of the 20th century, has disseminated information relating to the initiatives taken by it towards the complainant, for the purposes of the possible initiation of a disciplinary procedure, in a manner that does not comply with the principle of "lawfulness, correctness and transparency" and in the absence of a legal basis, in violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021).
With regard, however, to the television broadcast of the XX, also the subject of a complaint, it is noted that, on that occasion, in the presence of the same complainant, the President of the Order, in a pre-recorded video, answering a question from a journalist, is limited to making a generic reference to the abstract possibility that the Order could be called to evaluate the professional's conduct on a deontological level ("if I have to sue him then I will hear what the evidence is [...]"; see video of the transmission to the deeds). No information in relation to the initiatives actually taken towards the interested party was, therefore, disseminated, in this context, by the President of the Order, therefore having to arrange, limited to this specific profile, the filing of the complaint.
4. Conclusions.
In the light of the assessments referred to above, it should be noted that the statements made by the data controller during the preliminary investigation ˗ the truthfulness of which may be called upon to answer pursuant to art. 168 of the Code ˗, although worthy of consideration, do not allow overcoming the findings notified by the Office with the act of initiation of the procedure and are insufficient to allow the closure of the present procedure, since none of the cases provided for by the 'art. 11 of the Regulation of the Guarantor n. 1/2019.
Therefore, the preliminary assessments of the Office are confirmed and the illegality of the processing of personal data carried out for the Order is noted, for having disseminated personal data of the interested party in a manner that does not comply with the principle of "lawfulness, correctness and transparency" and in the absence of a legal basis, in violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021).
That said, taking into account that:
the processing concerned personal data not belonging to particular categories, relating to a single interested party;
the personal data disclosed by the Order had been made public through press articles prior to the events subject to the complaint;
even if the President had responded to the journalists' requests by illustrating the possible disciplinary consequences, in the face of conduct similar to that which is the subject of the complaint, in only general and abstract terms, without referring to the specific initiatives already taken by the Order towards the complainant, however, information relating to the specific case of the complainant would have been disclosed, albeit implicitly. On the other hand, the complainant has voluntarily chosen to participate in the television broadcast of the XX, accepting the inevitable consequence that his case was the subject of a public debate, also with regard to the deontological implications of his statements, and that considerations made by the guests of the transmission could, even implicitly, concern one's individual position;
the abstract relevance on the disciplinary level of the conduct of the interested party could in any case be considered easily foreseeable by the television audience (see the television broadcast of the XX, whose partial recording is in the records, in which the then Deputy Minister of Health, a guest in the studio, after viewing the service relating to the complainant's case, he exclaims "this thing is incommensurable [...] if the Order will see it [...]");
the Order has acted, within the delicate context of the SARS-CoV-2 pandemic, with the declared aim of protecting - even in the absence of an appropriate legal basis - public health and contributing to the containment of the pandemic, in the belief that the dissemination of the complainant's personal data could be based on the need to perform one's own task in the public interest, therefore, the violation having a culpable nature;
the Order proceeded to interrupt the publication of the press release in question following the start of the investigation and cooperated proactively with the Authority during the same;
there are no previous relevant violations committed by the data controller, having the same nature as those ascertained in relation to the complaints, or previous provisions pursuant to art. 58 of the Regulation;
the circumstances of the specific case lead to qualifying the same as a "minor violation", pursuant to cons. 148 of the Regulation and the “Guidelines concerning the application and provision of administrative fines for the purposes of regulation (EU) no. 2016/679”, adopted by the Art. 29 Working Group on 3 October 2017, WP 253, and endorsed by the European Data Protection Board with the “Endorsement 1/2018” of 25 May 2018.
In the light of all of the above, and of the overall terms of the matter in question, it is therefore considered sufficient to admonish the data controller for the violation of the aforementioned provisions, pursuant to art. 58, par. 2, lit. b), of the Regulation (see also cons. 148 of the Regulation).
Considering the assurances provided by the owner regarding the cessation of publication of the press release subject to the complaint, the conditions for the adoption of further corrective measures pursuant to art. 58, par. 2, of the Regulation.
Finally, it should be noted that the conditions pursuant to art. 17 of regulation no. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor.
ALL THIS CONSIDERING THE GUARANTOR
a) declares, pursuant to art. 57, par. 1, lit. f), of the Regulation, the illegality of the processing carried out by the Rome Provincial Order of Surgeons and Dentists, with registered office in Via Giovan Battista De Rossi 9 - 00161 Rome (RM), Tax Code 02604980587, for violation of articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), in the terms referred to in the justification;
b) pursuant to art. 58, par. 2, lit. b) of the Regulation, admonishes the Rome Provincial Order of Surgeons and Dentists, as data controller in question, for having violated the articles 5, par. 1, lit. a), and 6 of the Regulation, as well as 2-ter of the Code (in the text prior to the amendments made by Legislative Decree No. 139 of 8 October 2021), as described above;
c) believes that the conditions pursuant to art. 17 of Regulation no. 1/2019 concerning internal procedures having external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor.
Pursuant to articles 78 of the Regulation, 152 of the Code and 10 of Legislative Decree no. 150/2011, against this provision it is possible to lodge an appeal before the ordinary judicial authority, under penalty of inadmissibility, within thirty days from the date of communication of the provision itself or within sixty days if the appellant resides abroad.
Rome, 15 December 2022
PRESIDENT
station
THE SPEAKER
guille
THE SECRETARY GENERAL
Matthew
