Garante per la protezione dei dati personali (Italy) - 9509558

Garante per la protezione dei dati personali - 9509558
Authority:	Garante per la protezione dei dati personali (Italy)
Jurisdiction:	Italy
Relevant Law:	Article 5(1)(a) GDPR Art. 137(3) of the Italian Privacy Code Art. 139 of the Italian Privacy Code Art. 2 of the Code of Ethics for journalist Art. 6 of the Code of Ethics for journalist
Type:	Complaint
Outcome:	Upheld
Started:
Decided:	26.11.2020
Published:	23.12.2020
Fine:	10000 EUR
Parties:	n/a
National Case Number/Name:	9509558
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Italian
Original Source:	Italian DPA website (in IT)
Initial Contributor:	Davide C.

The Italian DPA (Garante) imposed a fine of €10,000 on Reti Televisive Italian S.p.A. (RTI) and prohibited the broadcasting of an interview made by “Le Iene” (an Italian TV program) reporters, which infringed the Italian privacy law and the Code of Ethics for journalists.

English Summary

Facts

The case concerns a complaint made by a doctor about a violation of his privacy during an episode of the TV show. After being approached by the reporters of the TV program who – without identifying themselves – had entered his office pretending to be ill, the doctor had been filmed and “interviewed” without realizing it. The report included long close-ups of his person, with his face only partially obscured and his voice undisguised, and details of his workplace which made him recognizable. In addition, the physician was persistently asked questions about the problem of smoke and air pollution in the municipality where he works, while he was performing his medical services.

Holding

According to the DPA, journalists could have qualified themselves and avoiding artifice and undue pressure, acting in a more transparent way in this specific case. In fact, the information about air pollution could be collected in different ways, for example by using other sources or through an open interview with the doctor. Moreover, the anonymity of the physician could have been more effectively ensured, for example by masking his voice and using shots that did not focus on the person and his working environment.

RTI shall pay a fine of €10,000 and will no longer be allowed to broadcast the interview, also through the website of the TV show, which must, however, be kept for possible use before a court. The Italian DPA has also ordered that a copy of the decision shall be sent to the National Council of the Order of Journalists.

Comment

The decision of the DPA is based on the fact that the freedom of the press can restrict the protection of privacy as long as the information contains only essential details on facts of public interest. Therefore, reporters should carry about their professional activity avoiding the disclosure of any irrelevant information that can create an unreasonable pression on the private sphere of individuals. This approach is also confirmed by previous decisions of the DPA and the ruling of the Italian Supreme Court no. 18006/2018.

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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.

Provision of November 26, 2020

Register of measures
n. 241 of November 26, 2020

THE GUARANTOR FOR THE PROTECTION OF PERSONAL DATA

IN today's meeting, which was attended by prof. Pasquale Stanzione, president, 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 101 of 10 August 2018, hereinafter the "Code");

GIVEN the complaint presented on 6 April 2019 with which dr. XX complained about a violation of the rules on the protection of personal data in relation to the dissemination, during the episode of "Le Iene" del XX, of a service entitled "XX" made, for the part that concerns him, by means of videos stolen without his knowledge, in which he has been made identifiable;

CONSIDERING that the interested party has, in particular, represented:

─ that he was approached by subjects who, without identifying themselves as correspondents for the broadcast, entered his medical office "in a deceptive, artifice ... and invasive way (in private premises)", pretending to be ill;

─ that he had been "filmed with long close-ups" in which his person - only partially obscured in the face - was "perfectly recognizable by his hair, his clothes (medical coat), his workplace filmed in different angles, his voice not at all disguised "and to have been pressed, while he was dedicated to his services as a doctor, by" continuous questions with the intent of fraudulently gathering precise statements ", regarding the problem of fumes and the situation of the air in the municipality in the which one carries out his profession;

─ to have suffered a strong psychological and image prejudice for the diffusion of this service, edited in a different way from what actually happened in his clinic, so as to attribute to him statements that do not correspond to reality;

─ to have received, shortly after the broadcast of the service (on 13 April 2018), a letter from the lawyer of the company indicated in the television service as the alleged cause of the reported pollution, with which he was called to answer for his statements, considered defamatory and to have therefore asked the editorial staff (on 19 April 2018), for the purposes of his defense, the original of the shots taken in his studio, receiving instead a montage of the same, made for broadcasting;

─ to have sent another registered letter (on November 29, 2018) aimed at "defining the matter with the editorial staff", reiterating the unlawfulness of the conduct, nevertheless receiving (on December 20, 2018) unsatisfactory and untruthful replies, i.e. that they had been adopted measures aimed at preserving its identity and that the publication of its data on the website of the Hyenas had been placed on the sidelines of the service;

GIVEN the note of 20 August 2019 with which the Authority asked the data controller to provide his observations regarding what is represented in the complaint and to communicate his possible intention to adhere to the requests made by the complainant;

GIVEN the note of 9 September 2019 with which Reti Televisive Italiane Spa, noted that:

─ the service was created by obscuring the face of the complainant, in compliance with the reference regulations (Article 85 of EU Regulation 2016/679 and 137 of the Personal Data Protection Code);

─ the replies obtained by the complainant were of a "crucial" nature with respect to the content of the service, constituting an "element of extreme relevance if not even necessary" in order to support the arguments supported therein (the possible link between the emissions of an establishment of a ceramics manufacturer and the rise of health problems among the local population, especially minors) and to attribute completeness to the news, considering his quality as a doctor and, therefore, the 'technical' nature of his opinion;

─ The "precise correspondence between what the doctor said and what was published by Le Iene" cannot be doubted, given that the assembly of the service was carried out according to the ordinary methods, without misleading the thought expressed by the professional, reporting "the words - clear eloquent and freely expressed "; moreover, no damage to the image and reputation of the complainant can be attributable to the service transmitted "since the words he uttered have no negative content";

─ the service was in any case modified by eliminating the part reproducing the interview (if, for information reasons, it was necessary to distribute it again) and was completely eliminated from the program website;

GIVEN the note of 27 November 2019 with which the complainant, in reaffirming the unlawfulness of the processing and in requesting a provision from the Guarantor on the merits, contested the arguments of the owner, pleading in the first place the failure to deliver the original footage and representing that, for the purposes of carrying out the service and completing the survey, the editorial staff could and should have involved other medical professionals and who, in any case, having been informed in advance, would not have refrained from expressing his opinion "freely and without conditioning";

GIVEN the note of the Office of December 27, 2019 (prot.n.45265 / 19) with which, pursuant to art. 166, paragraph 5, of the Code, Reti Televisive Italiane Spa was notified of the initiation of the procedure for the possible adoption of the measures referred to in art. 58, par. 2, of the Regulations and notified of possible violations of the law in relation to art. 5, par. 1, lett. a), of the Regulations, with the provisions of art. 2-quater, paragraphs 4, 137 and 139 of the Code and of arts. 2 and 6 of the Deontological Rules, as well as in relation to art. 15 of the Regulation, for the profiles relating to the request for access to data formulated by the complainant;

GIVEN the note of 24 January 2020 with which Reti Televisive Italiane Spa, in recalling the previous defenses, gave feedback to the aforementioned note from the Office, reiterating the arguments set out and adding that:

─ the request for acquisition of the service by the complainant formulated on the date was fully satisfied, as communicated to the same during a meeting held in the offices of the Company and in the communication sent to him on 20 December 2018, having provided the interested party «The set of audio-video images received by the… author of the service, to which the Company promptly addressed in order to satisfy the complainant's requests», which is why it did not linger on the point in the reply provided to the Authority;

─ the use of hidden cameras for investigative journalism was considered legitimate by the Guarantor himself, as well as by civil and criminal jurisprudence "precisely in order to allow the exercise of the right to information, otherwise impossible (Article 2 of the Code of Ethics ) ";

─ "the choice to include in the service the person of the doctor (whose anonymity was in any case intended to be safeguarded) was necessary", since, in the absence of his statements, the information would not have been publishable because " precisely of the essential findings about the effects produced by the conduct "of the production company under investigation, thereby sacrificing the right to report on a news of public interest, which was also recognized by the Court of Milan in filing the complaint for defamation presented by the company itself;

─ although the complainant complains about the ineffectiveness of the shielding of his face in order to guarantee his anonymity "the will of Le Iene was precisely to preclude his identification";

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 acts or documents, is liable pursuant to art. 168 of the Code "False statements to the Guarantor and interruption of the performance of the duties or the exercise of the powers of the Guarantor";

CONSIDERING that the treatments object of the dispute must be brought back within the scope of journalistic purposes and therefore Articles 136 - 139 of the Code and the Deontological Rules pursuant to art. 139 of the same Code;

CONSIDERING that art. 137, paragraph 3 of the Code and art. 6 of the Deontological Rules identify as a limit to the dissemination of personal data for the purposes described above, compliance with the principle of "essentiality of information regarding facts of public interest";

NOTING that the specific discipline dictated for journalistic activity does not exempt those who process personal data for this purpose from the obligation to respect certain guarantees of correctness and transparency, so that, "the journalist who collects news (...) makes his identity known, the their profession and the purposes of the collection (...) avoids undue artifice and pressure "; noted, however, that this obligation does not arise if "this (...) otherwise makes it impossible to exercise the information function" (Article 2, paragraph 1, of the Deontological Rules) and that the existence of this requirement must be assessed on a case-by-case basis, verifying if the personal data and the methods of their collection and dissemination are proportionate and really justified with respect to the information purpose otherwise not achievable (provision no.508 of 30 December 2011 [Doc. web1873945 ], prov . n. 364 of 10 July 2014 [Doc. web n. 3352396 );

CONSIDERING, in the present case, that this assumption does not exist, considering that the information sought by journalists (data relating to the increase in health problems resulting from an alteration in air quality) could equally have been acquired in different ways (recourse to other sources, an open interview with the doctor possibly with effective guarantees of anonymity; questioning of other doctors, etc.) not previously carried out and without the owner having provided suitable elements to prove the impossibility of proceeding without the artifices used (see also provision July 5, 2007, [web doc 1436163 ] and provision no. 28 of February 6, 2020 [web doc. no. 9283121 ], Civil Cassation section I, July 09, 2018, no. 18006);

NOTING also that, without prejudice to the findings regarding the collection of data, in the dissemination of the service in question, no suitable measures have been adopted to guarantee the anonymity of the interviewee - an objective to which the same owner declares to have intended to aim - what would have been, in addition to the obscuring of the face, the masking of the voice and the use of shots not focused on the person and his work environment (provision no. 508 of 30 December 2011, provision no. 364 of 10 July 2014 and provision no. 28 of February 6, 2020 cited; Court of Rome March 5, 2019, no. 5071);

CONSIDERING that the provision of the service in the manner described has resulted in a sacrifice of the complainant's rights that is not proportionate with respect to the information purposes of the service itself;

CONSIDERING therefore that the reported treatment is in contrast with the aforementioned provisions - in particular, with Articles 137, paragraph 3, and 139 of the Code and art. 2 and 6 of the Deontological Rules - and therefore with 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);

TAKING NOTE of the statements made by Reti Televisive Italiane Spa regarding the removal of the images relating to the complainant from the "Le Iene" service subject of the complaint, and the elimination of the service from the program's website, as well as with regard to the response given to the request for access to the data formulated by the complainant, having certified, in the aforementioned note of 27 December and under his own responsibility, pursuant to the aforementioned art. 168 of the Code, to have provided the complainant with everything received from the envoy author of the service;

CONSIDERED however, pursuant to art. 57 par. 1, lett. f), of the Regulations to have to evaluate the complaint based and for the effect, pursuant to art. 58, par. 2, of the Regulation to have to:

- to impose on Reti Televisive Italiane Spa, pursuant to art. 58, par. 2, lett. f), of the Regulations, the prohibition of the processing of the complainant's personal data within the service in question except for their conservation, also for the purposes of any use in court;

- adopt an injunction order, pursuant to art. 166, paragraph 7, of the Code and 18 of law no. 689/1981, for the application to Reti Televisive Italiane Spa of the pecuniary administrative sanction provided in conjunction with art. 2-quater, 166, paragraph 2, of the Code, and 83, par. 3 and 5, of the Regulations;

NOTING that for the determination of the amount of the financial penalty, it is necessary to take into account the elements indicated in art. 83, par. 2 of the Regulation and that in this case it is necessary to take into consideration, on the one hand:

a) the methods of data collection, given that the interview and filming were carried out without the complainant's knowledge, hiding the journalistic purpose of the same and mystifying the identity of the interviewers;

b) the circumstance that, despite having intended to guarantee the anonymity of the interested party, in the broadcasting of the television service adequate measures for the purpose have not been adopted, such as the alteration of the voice and the limitation of the framing of the environments, measures although known and used by the same owner on other occasions, in light of the experience gained in this particular journalistic activity, and which in any case would not have jeopardized the completeness of the information;

c) the effects of the processing, in consideration of the negative impact it had on the personal and professional sphere of the complainant in the social context of reference (Article 83, paragraph 2, letter a) of the Regulation), as also documented by the legal steps taken against him;

d) the fact that the owner has already been assessed by this Authority for profiles similar to those reported in this complaint (Article 83, paragraph 2, letter e) of the Regulations: provision. n. 364 of 10 July 2014 [Doc. web n. 3352396 ] mentioned above and - with reference to a treatment almost contemporaneous with that which is the subject of the complaint - prov. 28 of 6 February 2020 [Doc. web n. 9283121 ];

e) the duration of the violation, which lasted for a period of time extended from the dissemination of the video, including on the network, until the start of the preliminary investigation;

f) the relevant organizational, economic and professional conditions of the offender;
and, on the other;

g) the purposes pursued by the owner, attributable to the exercise of the right to press and freedom of information and, therefore, the need to ensure in this context the relative balance with the complainant's fundamental right to the protection of personal data concerning her, in accordance with the provisions of the Regulation (Article 85) and the Code (Articles 136 et seq.);

h) the adoption of suitable measures to eliminate the consequences of the violation (Article 83, paragraph 2, letter c, of the Regulations), having the owner removed the interview from the service subject of the complaint and from the online version of the program already during the preliminary investigation phase;

i) that the disputed facts occurred during the period of validity of the regime of progressive application of the sanctions envisaged by art. 22 of Legislative Decree of 10 August 2018, n. 101;

CONSIDERING the above parameters and the principles of effectiveness, proportionality and dissuasiveness indicated in art. 83, par. 1, of the Regulation;

CONSIDERING that, on the basis of all the elements indicated above, a pecuniary administrative sanction should be applied in the amount of € 10,000.00 (ten thousand);

CONSIDERING also - also in consideration of the scope of dissemination of the data and the time frame in any case elapsed from the time of transmission of the television service until its removal - that, pursuant to Articles 166, paragraph 7, of the Code, and 16, paragraph 1, of the Guarantor's Regulation no. 1/2019, this provision should be published on the Guarantor's website, as an ancillary sanction;

CONSIDERING that the conditions exist to proceed with the annotation in the internal register of the Authority pursuant to art. 57, par. 1, lett. u), of the Regulation, in relation to the measures adopted in this case in compliance with art. 58, par. 2, of the same Regulation;

GIVEN the documentation in the deeds

GIVEN the observations made by the Secretary General pursuant to art. 15 of the regulation of the Guarantor n. 1/2000;

SPEAKER Attorney Guido Scorza;

WHEREAS, THE GUARANTOR:

a) believes that there are no grounds for adopting specific measures in relation to the alleged failure to comply with art. 15 of the Regulation;

b) pursuant to art. 57 par. 1, lett. f), of the Regulations, declares the complaint founded for the reasons mentioned in the introduction and for the effect, imposes on Reti Televisive Italiane Spa, pursuant to art. 58, par. 2, lett. f), of the Regulations, the prohibition of the processing of the complainant's personal data within the service in question except for their conservation, also for the purposes of any use in court;

c) orders a copy of this provision to be sent to the National Council of the Order of Journalists.

ORDER

pursuant to art. 58, paragraph 2 letter. i) and 83 of the Regulations to RTI - Reti Televisive Italiane Spa to pay the sum of € 10,000.00 (ten thousand) as a pecuniary administrative sanction for the violations indicated in the motivation, representing that the offender, pursuant to art. 166, paragraph 8, of the Code, has the right to settle the dispute by paying, within thirty days, an amount equal to half of the sanction imposed;

INJUNCES

to RTI - Reti Televisive Italiane Spa, in the event of failure to settle the dispute pursuant to the aforementioned art. 166, paragraph 8, of the Code, to pay the sum of € 10,000.00 (ten thousand), according to the methods indicated in the annex, within 30 days of notification of this provision, under penalty of the adoption of the consequent executive acts pursuant to art. . 27 of the law n. 689/1981.

HAS

pursuant to art. 166, paragraph 7, of the Code, the publication in full of this provision on the website of the Guarantor and believes that the conditions set out in art. 17 of Regulation no. 1/2019 concerning internal procedures with external relevance, aimed at carrying out the tasks and exercising the powers delegated to the Guarantor.

Pursuant to art. 78 of the Regulation, as well as art. 152 of the Code and 10 of the d. lg. 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, November 26, 2020