Privacy: a new, interesting ruling of the Court of Cassation on the matter of journalism and the possibility of identifying the people involved

The Italian Supreme Court of Cassation, through sentence n. 1608 of the 27th of January ’14, which confirmed the decision of the first instance Court of Bolzano based on article 152 of the Privacy Code, offered a new important ruling about journalism, privacy and the possibility of identifying the parties involved.

The plaintiffs, a mother and son, asked the judge to recognise the violation of their privacy, brought about by the publication of an article in a local newspaper that was subsequently quoted by others. The article, despite omitting their names, provided several personal details, making it easy for readers to identify the people involved, especially considering the small group of people residing in that area. After the lower court stated that the privacy infringements had occurred, the case landed before the Court of Cassation which confirmed the decision of the lower court.

The most interesting aspect of the Supreme Court ruling concerns the definition of an “identifiable person”. The Court took the opportunity to clearly establish that, in order to identify the person whose private personal information has been published, it’s not necessary to specify his/her name, being sufficient that the person can be identified via a deductive method of exclusion within a certain category of people. The explicit mention of the name of the person potentially offended is not an indispensable condition to violate his/her privacy. On the contrary, to consider it essential would offer an open window to evade the protection of privacy rights granted by the law. As the Court of Cassation says, denying the actual application of the law to the cases in which the person is immediately identifiable, even without the mention of his/her personal details, is the equivalent of denying the concrete effectiveness of the law, making it easy to elude.

The legal framework referred to by the judge is the one that regulates the delicate balance between data protection and the right to inform. It’s very important in the press field to respect certain limits and certain conditions when you want to use personal data without the consent of the person concerned: first, the essential nature of the news and, secondly, the public interest regarding it. These limits are specified by Legislative Decree no. 196/2003 and by the Ethical Code for the Processing of Personal Information in Journalism (Data Protection Commissioner Order of the 29th of July 1998), in which the definition of the “essential nature” of the information, child protection and the respect of human dignity are specifically highlighted. If these conditions are not observed, as in the case discussed here, the mention of the person, especially as a victim of a crime, can be classified as a privacy violation, whether he/she is explicitly identified or identifiable.

With respect to this issue, the decision of the Court of Cassation, offering a broad definition of  an “identifiable person”, provides important guidance.