Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

posted by admin on settembre 15, 2017

Privacy

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On July 18th, Quotidiano Nazionale, the Italian daily newspaper that groups together three other dailies, Il Resto del Carlino, Il Giorno and La Nazione, published an analysis by Professor Giusella Finocchiaro of the legal implications relating to the unauthorised online publication of photographs taken from an email box.

It is neither possible nor right to comment on the technical-legal aspects of a sentence, the motivations of which are still not known and which will only be filed within the next 90 days. This is the reason we must wait. We have read that the Court of Milan has acquitted three bloggers accused by the Public Prosecutor of illegally stealing photographs of George Clooney and Elisabetta Canalis’s party from the email account of one of the party’s guests. But we have no further details. The precise nature of the charges concerned unauthorised access to an IT system, illegal interception of communications and violation of correspondence. From the first press leaks we read that on the one hand the judge appears to have partly opted for acquittal because the case was unfounded and on the other hand has deemed the conduct of the accused to constitute the less serious offence of disclosure of other parties’ correspondence, consequently acquitting the accused, since, in the absence of a formal complaint from the aggrieved parties, the offence would not have been prosecutable.

Thus, partly (at least), basically technical reasons. We do not even have any knowledge of the evidence produced in court and the presentation of electronic evidence in the trial is still ground to be fully explored. Of course a general consideration does need to be made: the Internet is not the Wild West and all the rules including procedural rules are also valid online. The same rules that apply outside the Web also apply on the Web, with the difficulties that this at times entails (we only need to remember the case of Tiziana Cantone). So, if the judges have decided on acquittal we can be in no doubt that there is appropriate legal reasoning. But certainly, unauthorised distribution of photographs or a violation of correspondence, which have been satisfactorily proven during the proceedings, are illegal both on and outside the Internet.

 

 

posted by admin on luglio 18, 2017

E-commerce and contracts

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The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Electronic Transferable Records (the “MLETR”) on 13 July at its fiftieth session in Vienna.

The MLETR legally enables the use of electronic transferable records that are functionally equivalent to transferable documents and instruments including bills of lading, bills of exchange, promissory notes and warehouse receipts.

The use of electronic transferable records may bring a number of benefits to electronic commerce including speed and security of transmission as well as the possibility of reusing the information contained therein. Electronic transferable records may be particularly relevant for certain business areas such as transport and logistics and finance (fintech). Moreover, their use allows for the establishment a fully paperless trade environment.

The MLETR sets forth the requirements for the use of an electronic transferable record. In particular, it defines control as the functional equivalent of possession of a transferable document or instrument. The MLETR also provides guidance on the assessment of the reliability of the method used to manage the electronic transferable record, on change of medium (electronic to paper and the reverse), and on cross-border aspects, among other items.

The MLETR builds upon fundamental principles underlying existing UNCITRAL texts in the area of electronic commerce. In particular, the adoption of the principle of functional equivalence allows the MLETR to operate without affecting the substantive law applicable to transferable documents and instruments, and the adoption of the principle of technology neutrality allows to accommodate the use of all methods and technologies, including distributed ledgers (blockchain).

The MLETR is accompanied by an Explanatory Note that provides background information to assist States in enacting its provisions and to offer guidance to other users of the text.

The work on the preparation of the MLETR was undertaken by UNCITRAL Working Group IV (Electronic Commerce) from its 45th session in 2011 until its 54th session in 2016. The final version of the MLETR will be made available at UNCITRAL website.

 

 

posted by admin on luglio 16, 2017

E-commerce and contracts

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At its fiftieth session the UNCITRAL Commission adopted the Model Law on Electronic Transferable Records. This is the result of work done by Working Group IV on Electronic Commerce.

The Model Law represents a significant further step forward in the development of electronic commerce and removes the legal obstacles to the international circulation of electronic transferable records. The Model Law is based on the UNCITRAL technology neutrality principle and on the functional equivalent approach.

Professor Giusella Finocchiaro is the current Chair of the Working Group on Electronic Commerce.

The Working Group has dealt with the definition and regulation of electronic transferable records from 2011 to 2016. On the 13th of July 2017, the Commission approved and adopted the Model Law.

 

 

 

The 50th annual session of the UNCITRAL Commission will be held in Vienna from the 3rd to the 21th July 2017. During the session the Commission will consider the deliberations and decisions of its Working Group IV on Electronic Commerce regarding the finalization and adoption of a Model Law on Electronic Transferable Records.

In 2011, the Commission mandated the Working Group IV to undertake work on electronic transferable records. The Working Group has worked on that subject from its forty-fifth session (Vienna, 10-14 October 2011) to its fifty-fourth session (Vienna, 31 October-4 November 2016). At its fifty-fourth session, the Working Group asked the Secretariat to revise both the draft model law on electronic transferable records and explanatory materials contained in document and to transmit the revised texts to the Commission for consideration at its fiftieth session. For these reasons, the Working Group invited the UNCITRAL Secretariat to forward the text to all Member States and international organisations for their opinions, in order to submit their comments to the UNCITRAL Commission at its 50th session.

Meanwhile, in 2016, the UNCITRAL Commission assigned to the Working Group a new project regarding new identity management and trust services, as well as cloud computing, underlying that it would have been premature to prioritize between the two topics. Therefore the Commission asked the Secretariat and the Working Group to continue updating and conducting preparatory work on the two topics, assessing their parallel execution and reporting back to the Commission so that it could make an informed decision at a future session, including the priority to give to each topic. In that context, it was mentioned that priority should be based on practical needs, rather than on how interesting the topic was or upon the feasibility of work.

 

 

 

posted by admin on giugno 15, 2017

Privacy

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The Article 29 Working Party of the European Data Protection Authorities (DPAs) has published a report on the public consultations held inside the Working Group in particular regarding critical aspects of the Privacy Regulation such as the concept of “consent”, compliance with notification of data breach and the profiling process.

As we know, the European Regulation 2016/679 on the processing of personal data, which has been in force since 24th May 2016, will take full effect from 25th May 2018. So, with the aim of taking prompt action to put in place the implementation of the GDPR, the Article 29 Working Party has organized a number of Fablab workshops with the objective of opening up dialogue with  representatives of European industry, the civil society, relevant associations and the academic world. More than 90 participants took part in the last Fablab session, which took place on April 5th and 6th in Brussels, where they discussed the priority issues of the European Regulation with the European DPAs.

With regard to the subject of “consent”, which constitutes the main legal basis for the processing of personal data, it emerged from the workshop that in certain cases the definition of “consent” contained in the Regulation might not in fact be a reliable basis for the use of personal data. Specific concerns have been raised about the processing of the personal data of a minor, since there is currently no way to either verify the exact age of individuals who give their consent online, or to confirm the identity of persons who declare online that they have parental responsibility.

With regard to consent for the processing of personal data for scientific research purposes, uncertainty was expressed about the secondary use of these data.

Participants also expressed uncertainty about the possibility of the withdrawal of already given consent and the possible consequences faced by those who refuse to grant it. Specific concerns were expressed about the situations in which those individuals who do not give their consent are not able to avail themselves of a particular service.

Further issue concerns have been raised about deals with data breach notifications. Participants asked for greater flexibility on the contents of notifications given the damage to their reputations companies which are victims of such attacks might suffer. They also asked for greater clarity both about methods of notification and the recipients of the notification in cases concerning data of data subjects from different Member States. Is notification required to be given to the Authorities of each Member State involved?

In addition, the workshop participants discussed the question of profiling as a particular form of processing of personal data. There are numerous types of profiling which differ from sector to sector and which cannot be subject to the same provision. For this reason, specific guidelines for each type of profiling have been requested. In addition the guidelines will have to take into account the different objectives for which profiling is made. On this subject, doubts have been expressed about whether there should be limitations to the types of data that can be used. In particular  regarding the personal data of minors. Participants also raised objections about there being no clear distinction between profiling processes based on human intervention and those which are completely automated.

The complete meeting report is available on the European Commission webpage dedicated to WP29.

 

In a piece published on the 15th April 2017 in the Quotidiano Nazionale (a daily which features articles from three Italian newspapers, Il Resto del Carlino, Il Giorno and La Nazione), Giusella Finocchiaro offered her thoughts on data protection and minors.

“Can children and adolescents sign up to Facebook or other social network accounts?

If being of age is a legal requirement for concluding a contract, then, why should it not be the case for signing up to a social network account? What is the age required for giving valid consent to the processing of personal data? Under Facebook regulations it is 13 years of age and under Italian law it is 18.

Then, why are so many Italian children and adolescents signed up to social networks? The answer is simple: according to the majority of subscription contracts, it is not Italian law which is applicable but the law governing the social network, which means, in the case of Facebook, the law of the United States of America and of the State of California.

Which law takes precedence? This is the most classical legal problem on the Internet, namely, determining which law is applicable and the jurisdiction. The new European Regulation n. 2016/679 on the Protection of Personal Data, which represents the new European law on data protection and is directly applicable from 25th May 2018, solves the problem with a partial compromise. It provides that European law takes precedence and that 16 is the minimum age to sign up (with an option for each Member State to set a lower age, provided that it is not below 13 years). Where the child is below the age of 16, parental consent is given or authorised.

According to certain recent Italian decisions in similar cases (the posting of pictures of their own children on social networks), the consent of both parents is needed. It is clear that it will not be very difficult to get round this provision. However, as the European Regulation provides for, it is the social network itself which will need to keep a check on things, by using available technology”.

 

 

posted by Laura Greco on maggio 15, 2017

Privacy

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The Italian Court of Cassation has recently been called on to deal with the issue of whether payment descriptions for bank transfers qualify as sensitive data, in cases in which they specify indemnity payments for illness or disability using the wording “allowance ex L. 210/1992”, (the law which grants allowances to parties who have suffered irreversible complications due to mandatory vaccination and blood transfusions, or in cases of decease, to their families).

The Supreme Court judges have expressed conflicting decisions in several such cases. In all the examined cases, the matter concerned the relations between the Region, which issues the allowance and authorizes the bank transfer, and the ill or disabled party’s bank, which is the recipient of the allowance on behalf of its current account holder.

In the case of the first decision dating from 2014 (judgement n. 10947 of 19th May 2014), the Court considered the payment description, which quoted the above-mentioned legislative references, as sensitive data and thus determined that both the Region and the bank had unlawfully processed personal data since they had not adopted security measures for the transmission and dissemination of said data, such as encryption techniques and non-identifiable codes, as provided for by Art. 22, 6° par. of the Personal Data Protection Code.

In the second decision (judgement n. 10280 of 20th May 2015), which is clearer and better developed than the previous one, the Supreme Court judges overturned their first approach and followed a quite different decision-making process. Firstly, they rejected the concept that payment descriptions for allowances filled out in such a way constituted sensitive data, as the law quoted provided that the recipients of these allowances could either be the parties directly affected or otherwise their families. Since the payment of the allowance did not depend on the illness of the party who actually received it, the judges concluded that the information was not sufficient to reveal the recipient’s state of health and, therefore, did not constitute sensitive data.

Secondly, according to the Supreme Court, it was not a question of the Region rendering the data transferred to the bank public, as this would have implied – in conformity with Art. 4, lett. m) of the Code – disclosure of the data to unspecified parties, whereas in this case the disclosure was only made to the bank of the current account holder who was the beneficiary of the allowance.

Furthermore, the judges considered that references to Art. 22, 6° par. of the Code were groundless, since, as correctly quoted, the adoption of encryption techniques is only required in specific cases where the data originate from directories or registries and the aim is to manage and consult them. Neither could the bank be considered to have the responsibility for adopting these measures for three different reasons: firstly, the provision is only applicable to public bodies; secondly, private entities are only obliged to adopt encryption measures in relation to sensitive data which would reveal a state of health and were processed with electronic systems, both of which conditions are missing in the present case; finally, communicating to a client of the bank’s his/her personal data does not constitute processing of personal data.

Finally, in the opinion of the Court, the role of the bank was that of the current account holder’s representative and it received the payment from the Region on his/her behalf: thus, the payment was to be considered as being directly effected by the debtor (the Region) to the creditor (the recipient of the allowance). Therefore, the Supreme Court considered both the Region’s and the bank’s conduct to be within the law and acknowledged there had been no illegal processing of personal data.

This question has recently once again been deliberated by the 1st Civil Division of the Court of Cassation, which has issued two interlocutory orders (no. 3455 and no. 3456 registered on 9th February 2017) delegating the “Sezioni Unite” (the Joint Divisions), the task of devising a solution to this conflict of case law. On this occasion the Supreme Court has abstained from expressing its own opinion one way or the other with regard to the different interpretations of case law regarding this issue, and has simply commented on the nature of payment descriptions as “sensitive data”. The Court has pointed out that, even if payment can be made both to the family and the ill or disabled party, only the latter would receive payment in instalments (whereas family would receive a lump sum). This particular method of payment would clearly identify the recipient of the payment as the victim of illness or disability and for this reason the indication of a payment in instalments would constitute sensitive data.

We will have to wait to see how the Joint Divisions will solve this conflict of case law we have just described and in particular whether they opt for a broad or restrictive interpretation of the concept of sensitive data.

 

 

posted by admin on marzo 31, 2017

computer crimes

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The Italian DPA has imposed fines totalling over 11 million euros on five money transfer companies which had unlawfully processed more than one thousand users’ personal data in order to bypass anti money-laundering regulations.

These companies collected and transferred to China sums of money belonging to Chinese businessmen, violating both the anti money-laundering law and the data protection law. By using the technique of structuring (i.e. the technique of breaking up large amounts of money into several smaller transactions below the anti money-laundering legal threshold), companies allocated money transfers to more than 1,000 customers, who were completely unaware of these transactions, by illegally using their data.

These serious violations came to light during an investigation by the Procura di Roma (the Rome Public Prosecutor’s Office). The Currency Police Unit of the Italian Financial Police, authorised by the Judicial Authorities, ascertained that the names of the people these money transfers were registered to did not correspond to the real senders. In addition, in certain cases the transaction forms turned out not even to have been signed or to have been filled out by people who were either deceased or non-existent. The personal data used were taken from photocopies of id documents, which were stored in specific folders to be used when needed. Money transfers were carried out within seconds of each other and involved sums of money which were just under the legal threshold and addressed to the same recipient.

Due to this infringement of the Data Protection Law committed by the companies, the Italian Data Protection Authority was obliged to intervene and, in view of the seriousness of the violations, the number of parties involved whose personal data had been processed without their consent and the importance (and size) of the database, has imposed the following fines: 5,880,000 euros for the multinational corporation and fines of 1,590,000 euros, 1,430,000 euros, 1,260,000 euros and 850,000 euros respectively for the other four companies, for a total of over 11 million euros.

 

 

posted by admin on marzo 15, 2017

computer crimes

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The latest report from Clusit (the Italian Association of Internet and IT Security) states that 2016 was the worst year ever for the evolution in cyber threats and their impact. The Interministerial Commitee for the Security of the Republic, chaired by Prime Minister Gentiloni, has devised a national cyber security plan.

Clusit stresses the phenomenal rise (+1,166%) in phishing attacks – by means of which cyber scammers persuade victims to hand over personal and financial data or login credentials by masquerading as bona fide companies – and social engineering scams – i.e. techniques of studying individual people’s behaviour in order to extort information. Malevolent common malware virus attacks also rose (+116%), and were not only small scale attacks, but also aimed at attacking important targets with significant impact.

There was a dramatic rise even in cyber warfare related attacks (+ 117%), which aim to increase geopolitical pressure or manipulate public opinion. Examples of cyber warfare attacks include those on political parties’ or institutions’ email accounts, but potential targets also include critical infrastructure such as energy, water, communications and transport services, attacks on which rose by + 15% compared to 2015.

So-called cybercrime – i.e. offences committed in order to extort money or information – represented 72% of global attacks in 2016. There has been a consistent upward trend in cybercrime since 2011, when the percentage was 36%. 32% of attacks use unknown techniques, which is 45% up on 2015.

In 2016 the healthcare sector was under increased serious attack (+ 102%) from ransomware – i.e. viruses that encrypt data on victims’ devices only released if the victims pay a ransom – and data theft. There was also a substantial rise in attacks against large scale retail distribution (+70%) and the banking and financial sector (+64%).

In geographical terms, in the second half of 2016 attacks against European targets rose from 13% to 16% and against Asian targets from 15% to 16%, whereas the number of victims in the USA seems to have dropped slightly, even if the USA remains the area most hit by cyber attacks. The tendency to attack mostly important and transnational targets was confirmed. An example of one of the most important global attacks was that against the Italian Ministry of Foreign Affairs.

The Interministerial Commitee for the Security of the Republic (Cisr) has launched a multi phase national plan for cyber security with a new decree – “indications for cybernetics protection and national information security”, which replaces the old Council of Ministers Presidential Decree of January 24th, 2013.

The new measure acknowledges the NIS (Network and Information Security) European Directive and reinforces the role of the Cisr which will issue directives with the aim of raising the level of national cyber security and will avail itself of the support of interministerial coordination on the part of the so-called “Cisr tecnico” (the Technical Interministerial Commitee for the Security of the Republic) and the Security Intelligence Department (Dis).

The new decree assigns the Director General of the DIS the task of defining appropriate courses of action to ensure the required levels of security in both public and private strategic systems and networks, identifying and removing their vulnerabilities. So as to successfully carry out these initiatives the involvement of both the academic world and the world of research is envisaged, as is the idea to use top quality resources in addition to setting up extensive co-operation with businesses in the cyber sector.

At an operational level, the Cyber Security Unit (Nsc) – now part of the Dis – will guarantee a coordinated joint response to any significant cyber attack on national security, together with specialists from all relevant Government Departments.

 

 

posted by admin on marzo 1, 2017

Privacy

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ratingBlackMirrorThe Italian Data Protection Authority has established that a “reputation rating” project violates the provisions of the Personal Data Protection Code and impacts negatively on human dignity.

The project, which was devised by an organisation structured as an association and a company appointed for its management, is based on a web platform and a database which gathers vast amounts of personal data either uploaded by users or obtained from the web, on various types of individual – from job candidates to business people, freelance professionals and private individuals. By means of a specific algorithm the system would then be able to objectively measure people’s reliability in the economic and professional fields, by assigning a score (“rating”) to their online reputation.

The DPA observed that the system would create significant problems in relation to privacy due to the confidential nature of the information, the pervasive impact on the interested parties and the method of processing. Essentially, the system implies the massive collection – also online – of information open to significantly impacting on the economic and social representation of thousands of people. Such processed reputation ratings might have serious repercussions on the lives of those who had been rated, since it might influence other people’s choices as well as jeopardising access for rated parties to services and benefits.

The DPA also expressed a number of doubts about the objectivity claimed for the ratings, stressing that the company could not prove the effectiveness of the algorithm used to regulate the settings of the “ratings”, which would be calculated without rated parties having any chance to freely give their consent. Given the complexity and sensitivity of measuring situations and variables which are not easy to classify, any rating might be based on incomplete or flawed documents and certificates with the consequent risk of creating inaccurate profiles which do not correspond to the real social identity of the rated parties.

Moreover, the DPA was concerned about the unreliability of allowing an automated system to decide upon such complex and sensitive issues relating to individuals’ reputations.

The system’s security measures which are principally based on “weak” authentication systems (user ids and passwords) and on encryption techniques only for judicial data, were found to be totally inadequate in the DPA’s opinion. Finally, further critical issues were detected in the time period for data storage and privacy policies for interested parties.

Therefore, in conclusion, the DPA has banned all present and future processing operations related to the reputation rating project.

 

 

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