A decision by an Italian Court (Court of Catanzaro, 30 April 2012, downloadable HERE) has rekindled the interest of commentators on the issue of unfair contract terms, giving rise to lively comments.
The decision regarding the suspension of a professional account assigned to a dealer by the operator eBay leads to certain reflections on the validity of the unfair terms in online contracts between professionals.
In fact the decision states that “with regard to unfair terms online, the prevailing academic interpretation – to which the Court adheres – deems that the signing of the content of the contract is not in itself enough sufficient – rather, it is necessary to specifically sign with a digital signature. Generally speaking, therefore, an electronic contract is completed through the virtual contractual button, but unfair contract terms will be effective and binding only if specifically approved through the digital signature”.
Although the finding of the Court of Catanzaro did not have a decisive value for the purposes of the conclusions reached, some of the judges’ considerations indeed provide food for thought.
In fact analysis of article 1341, paragraph 2 of the Italian Civil Code should, in fact, lead to different conclusions, or at least justify a less assertive orientation.
According to art. 1341 of the Italian Civil Code, the standard contracts require “specific approval in writing” and not “specific signing in writing” for the unfair contract terms to be valid. One might therefore consider an electronic signature sufficient, even considering the final decision on the suitability of electronic documents signed with an electronic signature falls to the responsibility of the judge (Legislative Decree no. 82 of 2005 of the Digital Administration Code).
The workshop on electronic identification and trust services will be held in the context of the IAS project.
The European Commission adopted on 4 June 2012 a proposal for a “Regulation on electronic identification and trust services for electronic transactions in the internal market” which includes electronic identification, electronic signatures, electronic seals, electronic time stamps, electronic documents and website authentication, as well as electronic delivery services.
The purpose of the workshop will be to collect and discuss feedback from stakeholders on the implementing needs relating to the forthcoming Regulation (delegated and implementing acts).
The workshop will take place on Wednesday 25 September 2013 (10:00-17:00) in the European Commission premises in Brussels (Auditorium, 1 Place Madou, 1210 Brussels, metro MADOU).
Law decree n. 69/2013 provides that “providing wi-fi access to the Internet does not require user identification”.
It is also explained that when the provision of Internet access is not the core business of the service provider, art. 25 of d. lgs. 1.8.2003, n. 259 and art. 7 of d. l. 27.7.2005 do not apply. This means that neither authorization from the Ministry of Telecommunications nor a licence from the Police Authorities are required.
In point of fact, wi-fi should already have been considered free after the abrogation of the Pisanu Decree Law, however interpretations of the regulatory framework were not unanimous.
Now there is no longer any doubt and a typical Italian anomaly not found in other countries has finally been eliminated.
Italian Law decree n. 69/2013, art. 17-ter, provides for establishing a public digital identity management system for both companies and private citizens. The system is known as SPID (Sistema Pubblico per la gestione dell’Identità Digitale).
The new provision modifies art. 64 of the Italian Code for digital administration.
Following the arrival of the SPID system, should identity controls be required, public administration will only be able to grant on line access if identity is certified by either electronic identity card or national service card or by means of SPID.
Public administration may also choose to adopt alternative systems to verify user identity providing these systems are capable of identifying users requesting their services.
Therefore, the choice of system is left to the discretion of public administration.
The law decree provides that companies may also choose to use the SPID system to manage the digital identity of their users.
The new technical rules on electronic invoices have recently been published in the Italian Official Journal.
Here follow the complete references and the link: DM 3 aprile 2013, n° 55 , “Regolamento in materia di emissione, trasmissione e ricevimento della fattura elettronica da applicarsi alle amministrazioni pubbliche ai sensi dell’articolo 1, commi da 209 a 213, della legge 24 dicembre 2007, n. 244″.
The new rules impose an exclusively electronic form of invoicing management on public administration suppliers.
Public administration departments will have to implement adequate working procedures for receiving e-invoices as they will no longer be able to accept invoices issued or transmitted in a paper form.
The new technical rules on electronic signatures have recently been published in the Official Journal.
Here follow the complete references: DPCM 22 febbraio 2013 “Regole tecniche in materia di generazione, apposizione e verifica delle firme elettroniche avanzate, qualificate e digitali, ai sensi degli articoli 20, comma 3, 24, comma 4, 28, comma 3, 32, comma 3, lettera b), 35, comma 2, 36, comma 2, e 71”.
The new rules give full legal value to a new type of electronic signature known as the “Graphometric Signature”, which consists of a handwritten signature being added to a digital document by means of a tablet using a special pen. According to the Italian Digital Administration Code currently in force, this signature can be regarded as either an electronic signature or as an advanced electronic signature. Whether it is an electronic signature or an advanced electronic signature depends on the security measures adopted.
“Graphometric Signatures” are used particularly by banks, but could be used in any field. The only limitation concerns contracts regarding real estate, which cannot be signed with a “Graphometric Signature”, but require a digital signature.
On 27.2.2012 the Milan Court of Appeal published the reasoning behind the decision taken on 21.12.2012 declaring the full acquittal of Google in the case Google vs. Vividown.
The Court affirms that the criminal offence of unlawful data processing, stated by Section 167 of the Italian Personal Data Protection Code does not exist in the case under examination.
In order to have a better understanding of the decision, it is useful to analyse the text of Section167, as provided by the Italian Data Protection Authority website.
“Section 167. Unlawful Data Processing
1. Any person who, with a view to gaining for himself or another or with intent to cause harm to another, processes personal data in breach of Sections 18, 19, 23, 123, 126 and 130 or else of the provision made further to Section 129 shall be punished, if harm is caused, by imprisonment for between six and eighteen months or, if the offence consists in data communication or dissemination, by imprisonment for between six and twenty-four months, unless the offence is more serious.
2. Any person who, with a view to gaining for himself or another or with intent to cause harm to another, processes personal data in breach of Sections 17, 20, 21, 22(8) and (11), 25, 26, 27, and 45 shall be punished by imprisonment for between one and three years if harm is caused, unless the offence is more serious”.
According to Section 167, the criminal offence exists only if three circumstances occur simultaneously:
1) deceit with the clear intention of either gaining profit or of causing damage
2) data are processed violating one of the other Sections mentioned in Section 167
3) data processing has in fact caused damage.
According to the Court, the third circumstance has occurred. The other two have not.
First of all, clear deceit has not occurred: in fact it implies not only the purpose of gaining profit through ordinary commercial activity, but a specific profit directly achieved by the accused.
Secondly, data have been processed without giving data information to the data subject, but Section 13 of the Italian Personal Data Protection Code, which affirms this duty, is not mentioned in Section 167. Moreover, the duty to give data information to the data subject is the duty of the data processor, who in this case is the uploader of the video.
We can certainly share the opinion of the Milan Court of Appeal regarding their reasoning, which has the merit of shedding some light on a highly complex matter, which still has to be defined.
On 21.12.2012 the Milan Court of Appeal declared the full acquittal of the Google executives who had been convicted of violation of the data protection law in 2010 by the Milan Court, whose decision caused a worldwide sensation.
These are the facts: the video of a disabled schoolboy being bullied by his schoolmates which they had then uploaded to You Tube.
Google was not convicted due to the fact that under Italian Law providers has no obligation to carry out a prior control. However, as there is the involvement of personal criminal responsibility in this case the Google executives were convicted of violation of the privacy law. The main points debated were the applicability of Italian law per se in the case and Google’s obligation to verify that those who had uploaded the video had respected the data protection law.
We look forward to reading the reasoning behind this judgement, which for numerous different reasons will certainly have wide-ranging implications.
Blogs and online magazines are not required to be officially registered and therefore they cannot be accused of the crime of operating a “clandestine press”. This is the reasoning behind the Italian Supreme Court’s ruling which concludes the trial of Carlo Ruta, the journalist and Sicilian historian and founder of the blog “Accade in Sicilia” (“It happens in Sicily”).
In 2008 the journalist was convicted of the crime of operating a “clandestine press” by the Modica Court for publishing his blog without authorisation, as provided for by art. 5 of the Law 8.2.1948, n. 47. The judgement of the Modica Court was the confirmed by the Catania Court of Appeal.
During the course of the proceedings the defence had argued to no purpose that this blog and all blogs in general are not equivalent to printed newspapers in that they are to be considered simply as tools of information, also taking into consideration the fact that they are not regularly updated.
Despite the imminent prescription of the offence, the outcome of the appeal to the Supreme Court was awaited with a certain apprehension by the defenders of citizens’ online rights.
A confirmation of previous decisions would have represented the introduction of an outdated legal obligation for all Internet blogs, and thus a bureaucratic burden which would realistically have led to many sites closing.
With decision n. 2330, the Third Criminal Division of the Supreme Court of Cassation has overturned all previous decisions affirming that the legal definition of a press product requires two conditions which are not satisfied by electronic newspapers, namely those of printed reproduction and the publication of such materials.
In the opinion of the judge, not even the most recent provisions relating to the registration of newspapers are applicable to Ruta’s blog. Law 7.3.2001, n. 62 (concerning the regulation both on publishing and published products, which modified Law 5.8.1981, n. 416) and which introduced registration for online newspapers, specifies that the obligation is to be carried out only for administrative reasons and exclusively with the aim of obtaining funds set aside for publishing.
Moreover this limitation was confirmed by legislative decree 9.11.2003, n. 70, which explicitly provided that registration for online newspapers is compulsory exclusively for those activities for which service providers require access to public funds.
As appears evident, this is a decision with wide-ranging implications since it affirms that neither blogs, nor even online newspapers are subject to the obligation to register if they do not intend to have access to public funds.