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Provisions Concerning Political Propaganda and Communications ' March 3, 2005 [1131593]

G.U. n. 64 del 18 marzo 2005

SCHEDA
Garante per la protezione dei dati personali
Doc-Web:
1131593
Data:
03/03/05
Argomenti:
Propaganda elettorale
Tipologia:
Provvedimenti a carattere generale

[doc. web. n. 1131593 - doc. web n. 1107658 ]

releted provision:

doc. web. n.  1131620 

doc. web n.  634369 


 

 

Provisions Concerning Political Propaganda and Communications – March 3, 2005
(as published in Italy´s Official Journal no. 64 of March 18, 2005)

 

THE GARANTE PER LA PROTEZIONE DEI DATI PERSONALI

Having convened today, in the presence of Prof. Stefano Rodotà, President, Prof. Giuseppe Santaniello, Vice-President, Prof. Gaetano Rasi and Mr. Mauro Paissan, Members, and Mr. Giovanni Buttarelli, Secretary General;

HAVING REGARD to legislative decree no. 196 of June 30, 2003, containing the Personal Data Protection Code;

WHEREAS on April 3 and 4 and in May 2005 administrative elections are scheduled to take place, and a referendum is to be held in spring 2005;

WHEREAS candidates and political parties undertake several communication and propaganda initiatives, which entail the use of personal data to send electoral and/or political messages describing the respective positions in connection with said elections and referendums;

WHEREAS the right vested in all citizens to contribute democratically to determining national policies (Article 49 of the Italian Constitution) is to be exercised in compliance with the fundamental rights and freedoms of the individuals the information refers to, and in particular, with the fundamental right to protection of personal data (Section 1 of the Code);

HAVING REGARD to Section 13(4) of the Code, whereby if the data is not collected from the person it refers to, the information notice referred to in paragraph 1 thereof is to be provided to the data subject upon recording his/her data, or else no later than at the time the data is first communicated if such communication is planned;

WHEREAS under Section 13(5), letter c), of the Code, the Garante is responsible for stating whether compliance by a given data controller with the obligation to provide an information notice entails clearly disproportionate efforts compared with the right to be protected, and ordering such measures as may be appropriate if this is the case;

HAVING REGARD to the general provision adopted by this Authority on February 12, 2004 (as published in the Official Journal no. 45 of February 24, 2004, which is annexed hereto and whose provisions are to be taken into account in full), setting out the preconditions and safeguards based on which political parties and movements, promoting committees, supporters, and candidates could lawfully use personal data as taken, in particular, from public sources with a view to electoral propaganda;

WHEREAS the safeguards and requirements referred to in the said provision of February 12, 2004 also apply in respect of the upcoming elections;

WHEREAS in order to exclusively pursue the referendum-related purposes and carry out the processing operations related thereto there is no need for obtaining whatever consent in addition to the one given by signing up the petition for a referendum, which is only valid under the law if the promoters collect some personal data in respect of the undersigning entities (Sections 7 and 8 of Act no. 352 of May 25, 1970, and Section 24(1), letter a), of legislative decree no. 196/2003) and communicate them to the entities in charge of verifying that said petition is compliant with the law (Section 9 and following ones of Act no. 352/1970, and Section 24(1), letter a), of legislative decree no. 196/2003);

WHEREAS, on the other hand, whoever plans to process the said data for purposes other than those related to the referendum is to request prior informed, free, written consent as separate from the signing up of the relevant petition;

WHEREAS the aforementioned provision by this Authority temporarily exempted any entity carrying out electoral propaganda activities from the obligation to inform data subjects in advance (as per Section 13 of the Code) if certain conditions were fulfilled;

WHEREAS it is necessary to refer herein to the safeguards set out by the Garante in the aforementioned provision of February 12, 2004;

WHEREAS it is necessary to temporarily exempt political parties and movements, promoting committees, supporters and candidates processing personal data exclusively for political communication and/or propaganda purposes from the obligation to provide the information as per Section 13 of the Code, for the limited period related to the said administrative elections and referendums;

WHEREAS pursuant to the principles set forth in the aforementioned provision of February 12, 2004 concerning information obligations, it is to be considered proportionate to the data subjects´ rights to exempt any entity using the data exclusively for electoral propaganda purposes from the obligation to provide information notices until June 30, 2005, whereby this applies to the information to be provided to the individuals personal data taken from publicly available sources refer to if said individuals are not contacted by the entity using their data and/or receive propaganda materials other than articulated letters and/or e-mail messages that do not allow including information notices;

WHEREAS after June 30, 2005 political parties and movements, promoting committees, supporters, and candidates may continue processing personal data taken from publicly available registers, directories, records and/or documents (also by simply retaining said data) exclusively for the purposes of electoral propaganda and the related political communications, on condition they inform data subjects by September 30, 2005 in pursuance of Section 13 of the Code;

WHEREAS the data shall have to be erased or destroyed if political parties and movements, promoting committees, supporters, and candidates fail to inform data subjects by the aforementioned deadline, i.e. September 30, 2005, in pursuance of Section 13 of the Code;

NOTING that data subjects may exercise the rights as per Section 7 of the Code and the data controller is required to reply thereto as appropriate;

HAVING REGARD to the records on file;

HAVING REGARD to the considerations made by the Secretary General pursuant to Section 15 of the Garante´s Regulations no. 1/2000;

ACTING on the report submitted by Prof. Giuseppe Santaniello;

BASED ON THE ABOVE PREMISES, THE GARANTE:

a) orders the data controllers concerned, pursuant to Section 154(1), letter c), of the Code, to take the necessary and appropriate measures referred to herein in order to bring their processing operations into line with the legislation in force;

b) provides, under Section 13(5) of the Code, that political parties and movements, promoting committees, supporters, and candidates may fail to inform data subjects under the terms and conditions set out in the Preamble if they process personal data taken from publicly available registers, directories, records and/or documents exclusively for purposes of electoral propaganda and the related political communications on the occasion of the administrative elections and referendums scheduled in the first six months of 2005;

c) orders that this provision be published in the Official Journal of the Italian Republic.

Done at Rome, on the 3rd day of March 2005

THE PRESIDENT
Rodotà

THE RAPPORTEUR
Santaniello

THE SECRETARY GENERAL
Buttarelli