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Code of Ethics and Conduct in Processing Personal Data for Business Information Purposes

VEDI ANCHE: versione italiana versione italiana

 

Code of Ethics and Conduct in Processing Personal Data for Business Information Purposes
(As published in Italy's Official Journal No. 238 of 13 October 2015)

THE GARANTE PER LA PROTEZIONE DEI DATI PERSONALI,

Having convened today, in the presence of Mr. Antonello Soro, President; Ms. Augusta Iannini, Vice-President; Ms. Giovanna Bianchi Clerici and Prof. Licia Califano, Members, and Mr. Giuseppe Busia, Secretary-General;

Having regard to the Personal Data Protection Code (legislative decree No. 196 of 30 June 2003, hereinafter ‘the Code');

Having regard to Article 27 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, whereby Member States and the Commission shall encourage the drawing up of codes of conduct intended to contribute to the proper implementation of the national provisions adopted by Member States pursuant to the Directive, taking account of the specific features of the various sectors;

Having regard to Sections 12 and 154(1)e) of the Code, which entrust the Garante with promoting the adoption of codes of ethics and conduct by the individual trade associations pursuant to the representativeness principle and by taking account of the guidance contained in Council of Europe's recommendations on processing of personal data, with checking that such codes are compliant with the applicable laws and regulations - where appropriate with the help of the submissions made by stakeholders - and ensuring that the codes are disseminated and abided by;

Having regard to Section 118 of the Code, whereby the Garante was empowered to promote the adoption a code of ethics and conduct in processing personal data for business information purposes by also providing for simplified arrangements to inform data subjects and suitable mechanisms to foster quality and accuracy of collected and disclosed data in line with the requirements set forth in Section 13(5) of the Code;

Having regard to Regulation No. 2/2006, which lays down the procedure for the adoption of codes of ethics and conduct, as approved by the Garante on 20 July 2006 (and published in Italy's Official Journal No. 183 of 8 August 2006);

Whereas the Commissioners' Panel of the Garante analyzed, on 19 February 2015, the draft Code of conduct and ethics the relevant working group had submitted after a complex drafting exercise and found it in line with the applicable laws and regulations as also related to Section 12 of the Code; whereas the Panel ordered for a public consultation to be launched on the said draft, which was posted on the Garante's website;

Whereas the public consultation was held between 17 March and 27 April 2015;

Having regard to the report of the meeting held on 9 June 2015 at the Garante's premises, where the relevant industry representatives evaluated the contributions received via the public consultation and laid out the final draft of the code of ethics and conduct, which was then submitted to the Garante with a view to taking the steps required for its adoption;

Having regard to the decision No. 434 of 23 July 2015, whereby the Garante, having examined the final draft of the code of conduct, found that it was in line with applicable laws and regulations and urged the industry representatives along with the relevant stakeholders to adopt it;

Having regard to the report drafted on 3 September 2015, whereby the text of the Code of ethics and conduct in the processing of personal data for business information purposes (which is attached hereto) was undersigned by ANCIC (Associazione Nazionale tra le imprese di informazione commerciale e di gestione del credito – National Association of Business Information and Credit Management Undertakings), FEDERPOL (Federazione italiana degli istituti privati per le investigazioni, per le informazioni e per la sicurezza – Italian Federation of private investigation, intelligence and security agencies), and ABI (Associazione bancaria italiana – Italian Banking Association), in their capacity as industry representatives, as well as by CONFCOMMERCIO (Confederazione generale italiana delle imprese, delle attività professionali e del lavoro autonomo – Italian general confederation of businesses, professional activities and self-employed professionals), CONFESERCENTI (Confederazione degli esercenti attività commerciali e turistiche – Confederation of trade and tourism businesses), CODACONS (Coordinamento delle associazioni per la difesa dell'ambiente e dei diritti degli utenti e dei consumatori – Coordination of the Associations for the defence of environment and users' and consumers' rights), ASSOUTENTI (Associazione nazionale a difesa dei consumatori nei confronti di burocrazia, commercio, assicurazioni, banche e telecomunicazioni – National Association defending consumers against red tape, commercial businesses, insurance companies, banks and telecommunications) and ADICONSUM (Associazione italiana difesa consumatori e ambiente – Italian Association for the defence of consumers and the environment), in their capacity as  stakeholders willing to abide by the principles of the code of conduct in question;

Whereas the entities that have undersigned and adopted the code of conduct as of today adequately represent the gamut of the entities that process business information on a professional basis and use such information in the performance of their own business and professional tasks as well as of the data subjects whose data are processed by the so-called "business information agencies";

Whereas the Garante will consider such additional requests as may be submitted by other industry representatives and/or stakeholders intending to undersign and/or adopt the said code of ethics and conduct at a later stage, pursuant to Article 8(3) of the aforementioned Regulation No. 2/2006;

Whereas compliance with the provisions set forth in the code of ethics and conduct is a precondition for the processing of personal data by private and public bodies to be lawful and fair (see Section 12(3) of the Code);

Whereas the code of ethics and conduct must be published under the Garante's responsibility in the Official Journal of the Italian Republic pursuant to Section 12(2) of the Code and Article 9 of the aforementioned Regulation No. 2/2006; whereas it must be included in Annex A) to the Code by a decree of the Minister of Justice;

Having regard to the records on file;

Having regard to the considerations made by the Office as submitted by the Secretary General pursuant to Article 15 of Regulation No. 1/2000;

Acting on the report submitted by Ms. Augusta Iannini;

BASED ON THE ABOVE PREMISES, THE GARANTE

Having taken note of the completion of the procedure for drawing up and undersigning the Code of ethics and conduct in processing personal data for business information purposes, which is attached hereto as an integral part of this decision, orders under Article 9 of Regulation No. 2/2006 that the said Code be transmitted to the Ufficio pubblicazione leggi e decreti at the Ministry of Justice with a view to its publication in the Official Journal of the Italian Republic as well as to the Ministry of Justice with a view to its inclusion in Annex A) to the Code.

Rome, 17 September 2015

THE PRESIDENT
Soro

THE RAPPORTEUR
Iannini

THE SECRETARY GENERAL
Busia

Code of Ethics and Conduct in Processing Personal Data for Business Information Purposes

Table of Contents

Preamble
Article 1 – Definitions
Article 2 – Requirements Applying to Business Information
Article 3 – Sources of the Business Information and Processing Mechanisms
Article 4 – Information to Data Subjects
Article 5 – Lawful Data Processing
Article 6 – Communication of Business Information
Article 7 – Matching and Usage of Business Information
Article 8 – Storage of Information
Article 9 – Exercise of Data Subjects' Rights
Article 10 – Information Security
Article 11 – Verifying Compliance with the Code of Conduct
Article 12 – Final and Transitional Provisions
Article 13 – Entry into Force

Preamble

The entities listed below undersign this Code of conduct, which is adopted pursuant to Section 118 of legislative decree No. 196/2003 as amended and supplemented thereafter (‘Personal data protection Code', hereinafter the ‘Code'), on the basis of the following preliminary considerations:

1. The entities operating in the business information sector undertake to respect the rights, fundamental freedoms and dignity of data subjects with particular regard to the right to the protection of personal data, the right to privacy, and the right to personal identity;

2. This Code of conduct sets out the adequate safeguards and arrangements to process personal data by protecting data subjects' rights that must be in place in pursuing business information purposes; this is aimed to ensure, on the one hand, certainty and transparency in business relations along with adequate knowledge and circulation of business and economic information and, on the other hand, quality, relevance, accuracy and topicality of the processed personal data;

3. The provisions contained in this Code of conduct apply to business information relating to natural persons, who fall within the scope of the notion of ‘data subject' as per Section 4(1), letter i), of the Code; in particular, they apply to the processing of personal data taken from public registers, lists or instruments that are publicly accessible and/or available – i.e., from the so-called public sources – and to the processing of any personal data that is made available directly by data subjects, to the extent such processing is performed by entities providing services to third parties for business information purposes and is in accordance with the limitations and mechanisms laid down in the legislation in force regarding availability, use and publicity of the data in question. The processing of personal data collected from private bodies other than the data subject shall fall outside the scope of this Code of conduct and shall be regulated further by the provisions of the Code as well as by such specific orders or decisions as may be adopted by the Garante in order to regulate this type of processing in detail;

4. The processing of personal data that is performed as part of credit information systems (credit bureaus)  shall fall outside the scope of this Code of conduct. The provisions contained in the relevant Code of conduct (see Annex 5 to the Code) shall be left unprejudiced in that respect;

5. This Code of conduct is addressed to all the entities that provide business information services to third parties under Section 134 of Royal Decree No. 773/1931 as amended and supplemented subsequently (Consolidated Public Security Statute, hereinafter ‘TULPS'), including the relevant implementing Regulations.

Article 1 – Definitions

1. For the purposes of this Code of conduct, the definitions laid down in Section 4 of legislative decree No. 196 of 30 June 2003 shall apply.

2. For the above purposes,

a. ‘business information' shall mean any data relating to an entity's assets and liabilities, economic, financial, credit, industrial or productive features;

b. ‘business information activity' shall mean an activity consisting in the provision of information and/or evaluation services that entail the retrieval, collection, processing, analysis (also by way of estimates and assessments) and communication of business information;

c. ‘business information purposes' shall mean the purposes of providing information to clients on natural persons' economic and financial situation and/or assets and liabilities as well as on the said persons' soundness, creditworthiness and reliability for the requirements arising from the establishment and management of business relations of an economic and financial nature, whether prior to entering into a contract or not, as well as from the protection of the relevant rights on the clients' part;

d. ‘business information service' shall mean a service concerning the performance, on the clients' behalf, of operations consisting in the collection, analysis, evaluation, processing and communication of information from public sources or sources that are publicly and generally available, or information that is obtained directly from the data subjects, in such a way as to provide added knowledge value to third parties;

e. ‘client' shall mean the public or private body requesting the business information service from the provider;

f. ‘provider' shall mean the private body providing the business information service to the client;

g. ‘target entity' shall mean the entity the business information service and/or the information report requested by the client relate to;

h. ‘information report' shall mean the paper or electronic document (a dossier or report) that is drawn up by the provider for the client, if so requested, containing the overall description – also in a summary, aggregated or consolidated manner – of the business information that has been collected regarding the target entity;

i. ‘evaluation data processing' shall mean the activity intended to deliver an assessment, whether or not in predictive and/or probabilistic terms and in the form of alphanumerical indexes, codes or symbols, regarding the target entity's soundness, creditworthiness and reliability as resulting from a statistical model or anyhow from a pre-determined, automated, non-customized information processing model; alternatively, the said assessment may be issued on the basis of analyses and evaluations carried out by expert analysts possibly via pre-defined categorization or ranking.

Article 2 – Requirements Applying to Business Information

1. The processing of personal data in pursuance of business information activities shall be compliant with the principles laid down in Section 11 of the Code.

2. The processing in question may not concern sensitive or judicial data except as provided for in Article 3(5) below exclusively with regard to judicial data from the public or publicly and generally accessible sources referred to therein, whereby the limitations and arrangements set forth by law shall have to be complied with in terms of access to, usage and disclosure of the said data.

3. The personal data collected and processed by the provider for the purpose of providing the business information service may concern both the data subject as the target entity and such  natural persons or other data subjects as have business and/or legal connections with the target entity, whether or not the latter is a natural person – e.g. where the latter is a company.

4. For the purposes of this Code of conduct, two or more natural persons or a data subject and an entity (e.g. a company) other than a natural person shall be considered to have business and/or legal connections if at least one of the following conditions is fulfilled:

a. The data subject has a vested interest in a company or enterprise by way of owning or controlling, directly or indirectly, a percentage of the company's stock, or partnership shares, or of voting rights, that is at least equal to the threshold set out in Article 7 below;

b. The data subject is effectively in control of and has authority or management powers over a company or enterprise on account of his or her position or office in that company or enterprise.

5. Article 7 below sets forth the constraints, including time-related ones, placed on establishing a connection between the personal data relating to the target entity and those relating to the entities that have business and/or legal connections with the latter in case the data in question concern  negative events such as bankruptcy or insolvency proceedings, issuance of mortgage or attachment orders, protesting of bills of exchange.

Article 3 – Sources of the Business Information and Processing Mechanisms

1. The provider shall collect the business information from the target entity, from public or publicly and generally accessible sources, or from other entities that are authorized by law to disseminate and provide such information.

2. The following sources may be used by a provider:

a. Public sources, meaning public registers, lists, instruments or records that are publicly accessible based on the applicable legislation in force pursuant to the limitations and arrangements set forth in such legislation as for access to, usage and disclosure of the data in question. This category includes, but is not limited to, the following:

i. The companies' register; financial statements and shareholders' or partners' lists;  extracts and/or records from the registers held at Chambers of Commerce; records and events relating to bankruptcy or other insolvency proceedings; and the computerized register of protested bills of exchange held by Chambers of Commerce and the related consortium called InfoCamere;

ii. Real estate transactions, documents containing prejudicial information (such as mortgage registrations or cancellations, attachment order registrations or cancellations, injunctions or judicial orders with the respective registrations) as kept by the Revenue Agency (including the former Land Registrar's Offices and the Public Cadaster), the Public Register of Motor Vehicles and the Census Register.

b. Publicly and generally accessible sources include the following:

i. Paper dailies and newspapers providing they are registered under the law;

ii. Business (so-called ‘Yellow Pages') or general phone directories;
iii.    Internet websites belonging to:

1. Target entities and other entities connected to the latter pursuant to Article 7 below;

2.  Public, governmental, regional or local bodies; public agencies and supervisory and regulatory authorities with regard to lists, registers instruments and records posted on such websites and containing information on business activities performed;

3. Trade and professional associations with regard to lists or registers of businesses or enterprises as disseminated on the respective websites;

4. At least three online dailies and newspapers, duly registered, confirming the information that is being provided. Account shall not be taken in this regard of online newspapers where the corresponding paper edition has already been considered, or of news features that are merely the same text published by different newspapers;

5. Online business or general phone directories.

3. The provider shall collect the personal data from the above public or publicly and generally accessible sources also by means of electronic tools and electronic networks, whether directly or indirectly, whether by relying on public bodies or other private sector providers, on the basis of ad-hoc agreements with the latter providers and in accordance with the formalities and limitations set forth in the legislation that regulates access to, usage and disclosure of the instruments and the data contained therein.

4. In acquiring and storing the personal data from public or publicly and generally accessible sources, the provider shall take suitable preventive measures to ensure:

a. That the information taken from the said sources is accurate and relevant for the purposes sought and that the personal data in question are processed in accordance with the proportionality principle;

b. That the specific source of the data is noted;

c. That the said data are updated in issuing the relevant information reports.

5. Judicial data from public sources may also be processed with a view to providing business information services; conversely, only such judicial data from publicly and generally accessible sources may be processed as have been disseminated over the previous six months –  calculated  from the date when the client's request for the services in question was received – and on condition the information is not modified by the provider except by updating it or used to develop assessment information.

Article 4 – Information to Data Subjects

1. With regard to the processing of information from the sources mentioned in Article 3 above, the provider shall inform data subjects in accordance with simplified arrangements compared to those envisaged as a rule in Section 13(5), letter c), of the Code taking account of the substantial number of data subjects along with the peculiarity of the information at issue – which may entail an effort that is clearly disproportionate compared to the right to be protected; in particular, the information may be given via ad-hoc communications posted on the Internet portal the providers of business information must set up also for this purpose.

2. The information mentioned in the foregoing paragraph shall include the items set forth in Section 13(1) of the Code in the form of a summary description of the key features of the processing performed by the provider – acting in the capacity of data controller – and must refer in any case:

a. To the data processors, where appointed, and/or to a list of such data processors, partly to enable exercise of data subjects' rights as per Section 7 of the Code (see Section 13(1), letter f), of the Code);

b. To the Internet web sites or any other source where each provider's detailed, specific information notice can be easily found for free;

c. To the arrangements for exercising the rights under Section 7 of the Code.

3. Where a provider's annual turnover relating to business information services is not in excess of Euro 300,000.00 (three hundred thousand), the information may be given via the ad-hoc communications posted on that provider's website.

Article 5 – Lawful Data Processing

1. Under Section 24(1), letters c) and d), of the Code, the data subject's consent shall not be required to process personal data coming from the sources mentioned in Article 3 above for business information purposes.

Article 6 – Communication of Business Information

1. Any information coming from public sources as per Article 3 above that is processed in order to provide business information services shall be communicated by the provider to its clients, also via electronic networks, in accordance with the public security legislation in force (Consolidated Statute on Public Security, TULPS).

Article 7 – Matching and Usage of Business Information

1. When providing business information services and where the information coming from public sources relates to negative events such as bankruptcy or insolvency proceedings, issuance of mortgages or attachment orders, protesting of bills of exchange etc., the provider shall:

a. Use the aforesaid information as related directly to the data subject, i.e. the target entity;

b. Only use the information relating to protested bills of exchange and other negative events affecting the target entity directly along with the judicial information set forth in Article 3(5) above, where the target entity is a natural person that does or did not carry out business activities, hold corporate offices or significant interests in companies or partnerships under the terms specified in the paragraphs below;

c. Only refer in the information report to the existence of additional data and/or information reports relating to data subjects that have business or legal connections with the target entity without enabling any direct connection to be established between the said public source information on negative events and the data subject, i.e. the target entity, or any use to be made of the said information in order to develop evaluation data relating to the target entity in question – except as provided for in the paragraphs below.

2. The  requirements made in paragraph 1, letter c), above shall not prevent the provider of business information services from linking to the data subject, i.e. the target entity, and using, in order to develop evaluation data relating to the target entity, such public source information as relates to negative events affecting businesses or companies where the said target entity holds or held (up to one year beforehand) the offices listed below, if the target entity in question is a natural person:

a. Proprietorship in a single-person enterprise;

b. Partner in a simple company or general partnership;

c. General partner in a limited partnership, or limited partner holding an interest of or in excess of 25% or else the majority interest, without prejudice – as for limited partnerships – to the controlling interest and 10% interest quotas in case of equal interest partners;

d. As for companies:

i. Partner holding an interest of or in excess of 25% or else holding the majority interest in the company, without prejudice to 10% interest quotas in case of equal interest partners;

ii. Chair or Deputy-Chair of the board of directors, member of the board of directors or CEO, member, director, member or director holding POAs, single manager or single partner of a limited liability company, single partner of a public limited company;

iii. Internal or external auditor, managing agent, chairperson of parties to shareholders' agreement, any of the entities managing an insolvency proceeding or an entity acting as attorney or manager – but only if the target entity holding the latter offices or qualifications

1. Did act as manager of the undertaking or company;

2. Held, until one year beforehand, interest of or in excess of 25% or else held the majority interest in the company or undertaking, without prejudice to the controlling interest and equal interest partnerships – in which case all partners may be targeted, including those below the abovementioned threshold, subject to a 10% minimum threshold.

3. With regard to the requirements made in paragraph 1, letter c), above, the provider of business information services shall continue to be empowered to link to the target entity and use, in order to develop evaluation data relating to the latter, public source information on negative events that affect the following individuals, if the target entity is other than a natural person (e.g. if it is an undertaking):

a. Any natural person holding the offices or qualifications mentioned in paragraph 2 above in the target entity, including such offices or qualifications as relate to undertakings or companies that are connected with the said natural person under the terms of paragraph 2 above;

b. Any natural person holding interest in the target entity under the terms set out in paragraph 2 above, including negative information on undertakings or companies that are connected with the said natural person under the terms of paragraph 2 above.

4. Subject to more stringent terms set forth in specific laws, if any, the public  source information concerning negative events that may be processed pursuant to paragraphs 2 and 3 above shall be kept by the provider of business information services in accordance with the time limits specified below:

a. The information concerning bankruptcy or insolvency proceedings may be kept for no longer than 10 years as from the date when the respective proceeding was initiated; thereafter the said information may be used further by the provider exclusively if additional information is found on a subsequent bankruptcy or if it is found that a new proceeding was initiated and such proceeding is related to the target entity or any other entity connected with the latter – in which case the information may be processed further for no longer than 10 years as from the date when the relevant proceedings were initiated;

b. The information on negative events (such as defaults) and/or cadaster-related information (mortgages and attachments) may be kept for no longer than 10 years as from the date those events were registered, subject to their cancellation before the said deadline – in which case a record of such cancellation shall be kept for 2 years.

Article 8  – Storage of Information

1. Except as provided for in Article 7, paragraph 4, letters a) and b) above, any personal data coming from the sources mentioned in Article 3 may be kept by a provider of business information services for as long as it remains accessible and/or is published in the respective public source pursuant to the applicable sector-specific legislation.

2. The provider's obligation to take suitable measures  for updating the business information provided in the light of the personal data recorded in the respective public sources shall be left unprejudiced; in this respect, the limitations and arrangements set forth in the applicable sector-specific legislation shall have to be abided by as for the access to, use and publicity of the data in question including their updates.

Article 9 – Exercise of Data Subjects' Rights

1. Providers shall take suitable technical and organizational measures to ensure that data subjects' requests to exercise the rights under Section 7 of the Code are replied to timely and thoroughly via electronic networks.

2. Data subjects may exercise the said rights also by way of the IT portal created for that purpose; the relevant management and access rules shall be set out in a separate technical document to be adopted once this Code is undersigned.

3. When lodging a request to exercise their rights, data subjects shall also specify their tax IDs and/or VAT registration numbers in order to facilitate data retrieval by the provider.

4. A third party designated in writing by the data subject, also by way of a POA, may process the personal data obtained from a provider exclusively in order to protect that data subject's rights and for no other purpose that party may possibly seek to achieve.

5. The above provisions shall be without prejudice to the limitations placed by the Code on exercise by a data subject of the right to have evaluation data rectified or supplemented, where such data are processed by a provider.

Article 10 – Information Security

1. Providers shall take the technical, logical, IT, procedural, physical and organizational measures that are suitable to achieve security, integrity and confidentiality of the business information they process pursuant to the obligations laid down in Section 31 et seq. of the Code as well as in Annex ‘B' to the Code.

Article 11 – Verifying Compliance with the Code of Conduct

1. The providers' industry associations undersigning this Code of Conduct shall foster compliance by the respective members with the rules set out herein, also by way of the bodies authorized to do so by the respective by-laws and/or via ad-hoc committees. To that end, specific procedures shall be adopted in order to:

a. Solve any problems related to application of the said rules;

b. Verify compliance with the said rules by their members in case any dispute arises between providers, clients and/or target entities.

2. The aforementioned associations undertake to consider, also jointly with trade associations and organizations representing other signatories to this Code,  ADR systems or mechanisms to settle disputes between providers, clients and/or target entities as well as specific sanctions in accordance with the respective by-laws in case of violations of the said rules by the members of the providers' industry associations undersigning this Code of Conduct.

3. Where sanctions are imposed in case of violations of the rules set forth in this Code of Conduct, the industry association or organization imposing such sanctions shall timely inform the Italian DPA as well.

Article 12 – Final and Transitional Provisions

1. Such measures as are necessary to implement this Code of Conduct shall be taken by the entities bound by it within the deadline set forth in Article 13 below.

2. The Italian DPA shall promote the review and adaptation of this Code of Conduct in the light of supervening legislation, technological progress and/or the implementing experience gathered, also upon request of the industry associations undersigning this Code.

Article 13 – Entry into Force

This Code shall apply as from 1 October 2016.