Electoral Propaganda: A Decalogue by the Garante ' September 7, 2005
(as published in Italy's Official Journal no. 212 of September 12, 2005)
[doc. web n. 1187710]
[ doc. web n. 1165613]
Electoral Propaganda: A Decalogue by the Garante – September 7, 2005
(as published in Italy´s Official Journal no. 212 of September 12, 2005)
THE GARANTE PER LA PROTEZIONE DEI DATI PERSONALI
Having convened today, in the presence of Prof. Francesco Pizzetti, President, Mr. Giuseppe Chiaravalloti, Vice-President, Mr. Mauro Paissan and Mr. Giuseppe Fortunato, Members, and Mr. Giovanni Buttarelli, Secretary General;
HAVING REGARD to international and Community instruments as well as to the Personal Data Protection Code (EC Directive 95/46, EC Directive 2002/58, legislative decree no. 196 of June 30, 2003);
HAVING REGARD to the records on file;
HAVING REGARD to the considerations made by the Secretary General on behalf of the Office, pursuant to Section 15 of the Garante´s Regulations no. 1/2000;
ACTING on the report submitted by Dr. Giuseppe Chiaravalloti;
1. PURPOSES OF THIS PROVISION
The initiatives related to electoral propaganda, referenda and/or the selection of candidates to elections represent an especially significant feature of participation in democratic life (as per Article 49 of Italy´s Constitution).
In view of the forthcoming elections, the Garante considers it necessary to draw attention to the main cases in which personal data may be used by political parties and organisations, promoting and/or supporting committees, and individual candidates for propaganda purposes by respecting data subjects´ rights and fundamental freedoms (as per Section 2 of the Code).
2. DATA REQUIRING NO CONSENT
a) Electoral Registers
The data contained in the electoral registers that are kept, continuously updated and provided in copy by municipalities, also on electronic media, may be used without the data subjects´ prior consent. The whole gamut of electors can be contacted easily in this manner.
The following lists and registers concerning electors and elected candidates may also be used:
- the list of Italian electors residing abroad as held for the purpose of the European Parliament elections;
- the updated list of Italian citizens residing abroad as aimed at drawing up electoral registers, which is created by merging the data contained in the register of the Italians residing abroad (AIRE) with the information contained in consular data files;
- the list of Italian citizens residing abroad that are entitled to vote in the elections concerning the Committee of Italians Abroad (Comites);
- the so-called added lists of electors that are EU citizens, where they are resident in Italy and intend to exercise their voting rights in Italy on the occasion of European Parliament elections.
b) Other Publicly Available Lists and Registers
In addition to electoral registers, other documentary sources held by public bodies may be used for propaganda purposes without the data subjects´ consent if the sources in question can be accessed freely and with no limitations, as expressly provided for by a law and/or regulation. However, it shall be necessary to comply with the mechanisms set forth in order to access the said sources – requiring, for instance, identification of any entity requesting copies of the data, or else allowing for access only during certain periods – or else in order to use them, such as the obligation to specify the source of the data in propaganda materials, or the need to abide by the purposes for which certain registers are made public.
c) Data Collected by Holders of Elective and/or Other Public Offices
The holder of an elective office is allowed to use the information collected within the framework of his/her personal relationships with citizens and electors.
Some specific legal provisions also allow the holder of an elective office to request a public body to provide information that can be useful in discharging his/her office; such information may only be used for purposes that are relevant to the discharge of official duties. Hence, the information in question may be used for propaganda initiatives addressed to the data subjects concerned exclusively under specific circumstances whereby the said initiatives can be regarded in concrete as factually related to activities and tasks carried out in the course of the office.
It is unlawful to apply to an administrative agency/body for the communication of whole databases and/or the creation of ad-hoc "dedicated” lists to be used for propaganda purposes other than in the cases referred to above, which must be related to activities and tasks carried out in the course of the relevant office.
Nor may it be allowed that holders of other, non-elective public offices make use for propaganda purposes of the data acquired in view of discharging their institutional duties.
d) Data Collected in the Course of Professional and/or Business Activities
Personal data that are collected insofar as they are necessary in discharging professional and/or business tasks with a view to performing certain activities or supplying goods and services may not be used. Propaganda purposes cannot be reconciled with the purposes for which such data are collected.
e) Members of Parties, Political Bodies and Committees
Personal data concerning members and adherents and/or other entities that are regularly contacted may be used lawfully within the framework of parties, political bodies, promoting and supporting committees, no ad-hoc consent statement being required (see Section 26(4), letter a), of the Code).
f) Members of Other Associations of a Non-Political Character
Other not-for-profit bodies, associations and organisations such as trade unions, professional associations, sports associations, trade associations, and so on, may envisage that the respective purposes also include the propaganda purposes referred to herein; if the latter purposes are pursued directly by the said bodies, organisations and/or associations, no consent is required (see Section 24(1), letter h), and Section 26(4), letter a), of the Code).
3. DOCUMENTARY SOURCES THAT MAY NOT BE USED FOR PROPAGANDA PURPOSES
Some documentary sources held by public bodies may not be used even by the holders of elective offices either because of specific legislation prohibiting their acquisition for propaganda purposes or because of official secrecy requirements, or else on account of their having been acquired pursuant to legislation that places some constraints on their use. This applies, for instance, to the following :
- Registers of births, marriages and deaths
- Census Registers, which however may be used by public administrative bodies for institutional communication purposes
- Electoral registers where already used in polling stations, containing annotated information on non-voters, which may only be used to verify that voting operations went on smoothly
- Annotations made privately by tellers and party representatives during voting operations
- Certain mailing lists and data that are only collected with a view to the institutional activities of a public body or, more generally, to supply/deliver services including health care.
4. DATA THAT MAY BE USED ON THE BASIS OF A PRIOR CONSENT
Other documentary sources may be used for propaganda initiatives on the basis of the data subjects´ prior consent.
A) Sympathisers and Contacted Individuals
Political parties and organisations, supporting and promoting committees, and individual candidates may lawfully use data concerning sympathisers and/or other individuals that either have already been contacted in connection with individual initiatives, or have occasionally taken part in such initiatives (petitions, bills, motions for referenda, signature collection, etc.).
In these cases, the data subjects´ prior consent must be collected in writing as sensitive data are involved. The consent may also be given once and for all.
B) Telephone Directories
In the new telephone directories, both on paper and in electronic format, there appear two symbols beside the subscribers´ names – pursuant to Community legislation, which is binding on the national lawmaker – to signify the subscriber´s consent to receive mail at his/her home address or phone calls for purposes other than personal communication, respectively.
In these cases, the subscribers´ data may also be used to send propaganda materials and/or make phone calls for propaganda purposes – depending on the symbols appearing in the directory.
C) Specific Communication Mechanisms
Pursuant to Community legislation, which is binding on the national lawmaker, some specific communication mechanisms require the specific consent by subscribers to public electronic communications services – including subscribers to mobile telephony services and users of pre-paid phone cards (e.g. as regards the sending of faxes, SMS and/or MMS messaging, pre-recorded phone calls, e-mail messages).
Consent, which may also be obtained once and for all, must be obtained in any case prior to making the call and/or sending the message, and must be based on clear-cut wording that expressly refers to the purposes of political and/or electoral propaganda. Tacit or implied consent is inadmissible.
Without the person´s prior, informed consent it is unlawful to send messages, newsletters and any other kind of propaganda material if one uses:
- data collected automatically on the Internet by means of ad-hoc software;
- lists of the subscribers to a provider;data posted on websites for purposes specifically related to corporate information,
commercial communication and/or the activities of institutions and/or associations;
- data taken from forums and/or newsgroups;
- data that may be consulted on the Internet exclusively with a view to implementing the provisions on registration of domain names.
D) Data Collected and Made Available by Third Parties
The circumstance that the personal data have been acquired from a third party – who might have collected them on the basis of a consent statement rendered with regard to the most diverse purposes, including promotional and commercial ones – does not exempt a political party, organisation, committee and/or candidate from the obligation to verify, also on a sample basis and by means of the election manager, that :
- the third party in question has informed data subjects about the use of their data for propaganda purposes and obtained their express consent as appropriate. The consent must have been given freely as well as separately from the consent to the provision of goods and/or services; furthermore, it must be documented in writing;
- the third party in question has not infringed the purpose specification principle in processing the data, by pooling information extracted from different archives, whether public or not, that pursue incompatible purposes (Sections 11 and 61 of the DP Code).
The above precautions should be also implemented if the third party providing the data has been appointed as data processor by the entity carrying out the propaganda activities.
5. OBLIGATION TO PROVIDE AN INFORMATION NOTICE
If the data are collected from the data subject, the latter must be informed in any case on the features of the processing, except for the information that is already known to him/her (Section 13, para. 1 and para. 2). If the data are collected from another source, and none of the conditions referred to in point 6 below applies, the information notice must be provided either at the time the data are recorded or when they are first communicated to third parties, if any (Section 13, para. 4 and para. 5).
A summary, though effective, information notice may be modelled after the simplified text reported below, which can also be added to e-mail messages and/or propaganda letters (Section 13(3) of the Code):
"The data you provided of your own free will (or: taken from….) are used by … (specify the data controller´s name) only for propaganda purposes (or: for the purpose of selecting candidates…; specify whether the data will be used for similar initiatives, or else by individual candidates as well as by the political entity´s components), also with the help of computerised means, and will not be communicated to third parties (specify whether an external organisation is in charge of delivering the messages/letters). You may at any time access the data, request and obtain that propaganda materials are no longer delivered to you, object to the processing of the data, or have them supplemented, rectified, etc., by applying to: ….. " (specify the data controller´s contact details, or else another reference person´s contact details, e.g. the data processor, if appointed by the data controller).
6. CASES IN WHICH NO INFORMATION NOTICE IS TO BE PROVIDED
It is the Garante´s view that in the two cases mentioned below a political party or body, a promoting/supporting committee, or an individual candidate is not required to provide data subjects with information notices as per the relevant legislation, with regard to political initiatives and elections on schedule up to June 30, 2006.
More specifically, the Garante believes that – in line with decisions made in the past – the efforts required to achieve the purposes in question are disproportionate compared with the rights to be safeguarded (Section 13(5) of the DP Code), providing the political party or body, the promoting/supporting committee, or the individual candidate only uses the data for the purposes referred to herein and:
a) collects the data directly from publicly available registers, lists, instruments or documents without contacting data subjects, or
b) sends small-sized propaganda materials, which – unlike a letter, or an e-mail message – do not allow including a suitable information notice also if worded concisely.
Additionally, the Garante is striving to prevent a considerable number of data subjects from receiving, over a short time span, a high number of similar information notices from several entities working for political initiatives and/or waging electoral campaigns.
Conversely, if data subjects are contacted by sending them letters, e-mail messages, or mailings/envelopes containing several documents – whether the latter are small-sized or not –, the information notice – to be worded in accordance with the simplified model suggested above – may be inserted into the letter, the e-mail message, or the mailing/envelope rather than being sent out at the time the data are recorded (Section 13(5), letter c), of the DP Code).
As of October 31, 2006, political parties and movements, promoting/supporting committees, and individual candidates intending to retain data in respect of which no information notices have already been provided shall have to inform the data subjects thereof in accordance with Section 13 of the DP Code if they plan to communicate with the said data subjects.
7. SAFEGUARDS AND REQUIREMENTS
As regards propaganda and/or candidate selection initiatives that entail the use of personal data, special attention should be paid to the safeguards laid down in the data protection Code in respect of data subjects, in particular because the data at issue are sometimes sensitive data.
Irrespective of whether the data controller is a political party or movement, a supporting/promoting committee, or an individual candidate, the processing must not be notified to the Garante (Section 37 of the DP Code).
Appointing one or more entities as data processors is an option (Section 29 of the DP Code).
However, it is necessary to appoint the natural persons in charge of the processing (Section 30 of the DP Code) and take suitable security measures as per the Code; depending on the specific circumstances, the latter measures must be in line with those referred to in Sections 31 to 36 of the Code or in Annex B) to the Code.
Finally, the requests lodged by data subjects to exercise their rights – e.g. to access the data concerning them, know their source, be informed about some processing features, or object to the use of their data and/or to the delivery of further information materials and/or to receiving additional phone calls (Section 7 of the Code) – must be dealt with promptly. If a data controller fails to react appropriately, the data subject may either apply to judicial authorities or lodge a complaint/claim/report with the Garante.
BASED ON THE ABOVE PREMISES, THE GARANTE
a) pursuant to Section 154(1), letter c), of legislative decree no. 196/2003, orders that the data controllers concerned should bring the processing operations concerning personal data into line with the principles referred to herein;
b) pursuant to Section 13(5) of legislative decree no. 196/2003, provides that political parties and movements, promoting/supporting committees, and individual candidates may refrain from informing data subjects under the conditions set out in point 6 hereof;
c) provides that a copy of this provision be sent to the Publishing Department of the Ministry of Justice with a view to its publication in the Official Journal of the Italian Republic under Section 143(2) of the Code.
Done in Rome, this 7th day of September 2005
THE SECRETARY GENERAL