Arms' War In Italy: Aggressive Marketers Versus Privacy Watchdog1

Article by Felix Hofer2

(As per January 2010)

1. Implementing both, EU Directive 2002/58/EC of July 12th, 2002 (Directive on privacy and electronic communications) as well as Directive 2000/31/EC of June 8th, 2000 (Directive on electronic commerce) the Italian legislator decided that unsolicited commercial communication had always to adopt a strictly "opt-in" approach. The choice clearly didn't drive marketers into a status of happiness: they felt that their business was unnecessarily harassed by complex and costly burdens. Therefore they decided initially not to care too much about the requirements set by the new regulations and to continue in their proven aggressive marketing techniques.

   In doing so they nevertheless had underestimated a couple of factors: on one hand, consumers' reaction (who resulted more and more annoyed by spamming practices and behavioural targeting and were no longer prepared to tolerate disturbing intrusions into their sphere of personal intimacy), on the other hand, the role of a special Authority (the Privacy or Information Commissioner - DPA) in charge – in all countries members to the EU - of supervising proper compliance with the key principles of protection of personal data (and quickly focusing on the purpose of achieving a correct balance between consumers' privacy and electronic marketing).

2. In the light of such purpose the Italian Privacy Commissioner during the years – and especially after the Italian Privacy Code3 came into force - has frequently addressed various aspects of marketing both, through specific guidelines as well as through case by case decisions, issued with respect to objections filed against practices performed by companies. In year 2003 the Commissioner delivered his views and indications on MM4, SMS5 and E-mail6 marketing, while in 2005-2006 the Authority put Electoral marketing7, Hotels guests registration practices8 as well as their fidelity programs9 and Fax marketing10 under scrutiny.

3. The reins for the local marketing industry were drawn even tighter after the EU Directive 2005/29/EC of May 11th,11 2005 received domestic implementation through the so-called "Consumer Code"12, which considers13 unsolicited commercial communication as an excessively aggressive and illicit practice.

   At that point the marketers felt that they had only few options left for avoiding the requirement of specific in-advance consent before targeting consumers with commercial communication. Their ultimate idea therefore was to refer to "publicly available" personal data, such as those contained in telephone books or other freely accessible general directories. Especially providers of Internet connections, of Internet related or of phone services widely used to refer to such data sources for achieving addresses of prospect clients and to target them with frequent and intensely repeated promotional offers.

   But again the general public strongly disliked such intrusive practice and therefore inundated the Privacy Commissioner with a significant amount of complaints, which induced the Authority to hoist a clear warning flag by opening an infringement investigation and serving the leading Italian Telco with an injunction prescribing corrective...