I. Does your country's legal system recognise
or guarantee freedom of the press?
1. If so, is it a constitutional right, or a right recognised by a code or a statute, or by decisions of the courts?
Article 21, subsection 2, of the Italian Constitution recognises freedom of the press, stating that the press cannot be subjected neither to authorisations nor to censorship.
2. Is it limited only to the press or extended to all the media?
According to article 21, subsection 1, of the Italian Constitution, anyone has the right to express his own opinions through speech, writing, and by any other means of communication. This rule can therefore be applied to all modern media.
3. Is it an absolute or a qualified freedom?
Article 21, subsection 6, forbids any kind of publication, show or other
exhibition contrary to public morality. On the other side, article 684
of the penal code punishes the publication (either entire or partial) of
some acts and documents of a criminal proceeding, which are indicated by
articles 114 f. and 329 of the criminal procedure code. Finally, it must
not be forgotten that the press and, generally, all media may also represent
the means by which some personal rights (such as the right to one's honour
and reputation, or the right to one's image and of privacy) may be infringed.
All this means that freedom of the press is a qualified right.
II. Does your country's legal system recognise
or guarantee the right of privacy?
1. If so, is it a constitutional right, or a right recognised by a code or a statute, or by decisions of the courts?
No article of the Italian Constitution guarantees explicitly a right
of privacy. Italian statutes don't recognise either such a right in a general
way. Anyway many particular rules exist, from which time ago law scholars
and case law deduced the existence of this personal right.
Beginning by the Constitution, it will be necessary to mention articles 14 and 15, that consecrate as well the inviolability of domicile as the secrecy of correspondence and of any other means of communication. These same principles are stated by articles 614 ff. of the penal code. The secrecy of correspondence is also protected by the statute on copyright, which allows anyone to forbid the publication of his own correspondence, memoirs, or confidential writings (article 93, Act 633, 22 April 1941; see also, in the field of copyright, Article 126 of the same Act, which grants any author the right to conceal the authorship of his works).
Considering now the international agreements, it has to be remembered in the first place article 8 of the European Convention for the Protection of Human Rights and of Fundamental Rights, which has been ratified by Italy in 1955. This article declares that any person has the right to oppose any kind of violation of his own private and family life, of his own domicile and correspondence. Article 16 of the International Convention relating to the Rights of Children, signed in New York on 20 November 1989 (which has been ratified and executed in Italy by Act 176, 27 May 1991) states that no child will be object to arbitrary or illegal interferences in its privacy, its family, its domicile, or its correspondence (for a case of protection of a minor's privacy see Pret. Torino, 19 December 1989, Dir. fam., 1990, 572).
Some particular aspects of privacy are protected by some articles of the penal code, which have been introduced by Act 89, 8 April 1974 concerning the "protection of privacy and of freedom and secrecy of communications". So article 615 bis of the Italian penal code punishes all those who, by means of visual or sound recording devices (e.g. by taking pictures trough telephoto lens: see Trib. Milano, 8 April 1991, Dir. inform., 1991, 865), unlawfully obtain information or images concerning the private life inside any other's domicile or inside any other kind of private residence. Article 617 bis of the penal code punishes anyone who, out of the cases provided for by the law, installs any kind of devices or means in order to tap telephone or telegraph conversations.
In the area of criminal law it's yet necessary to mention the provision of the law concerning the protection of professional and judicial secrets (see the articles 622 and 684 of the penal code and the articles 114 f. and 329 of the code of criminal procedure).
Returning to civil law it is necessary to mention first of all article 10 of the Italian civil code, concerning the right to image (see the answer to question II 6). This is the only provision of the civil code from which it's possible to deduce the existence of the right of privacy.
Some aspects of privacy are also protected in the field of the certificate of civil status. For instance, article 5, Act 164, 14 April 1982 (concerning the rectification of the sex indication in the birth certificate) foresees that, when the change of sex and the consequent rectification of the birth register have been authorised by the tribunal, the registrars must issue the certificates concerning persons whose sex has been changed with the only indication of the new sex and of the new name. Article 28, Act 184, 4 may 1983, concerning the adoption of minors, decrees that birth records relating to adopted children can indicate only the new family name, without any reference to the minor's biological fatherhood or motherhood.
In the area of the protection of workers, article 8, Act 300, 20 may 1970 ("workers' statute"), prevents employers from inquiring into their workers' political or religious beliefs as well as from investigating about trade-unions membership. Article 4 of the same Act forbids the installation of audiovisual aids and of other devices in order to watch the workers' activities. In the same way article 26, Act 958, 24 December 1986 (which has amended article 17, Act 382, 11 July 1978), concerning the military, forbids to record into the personal files any information about the soldiers' political or religious opinions.
As for the health area, Act 135, 5 June 1990 (concerning the prevention and the struggle against AIDS), foresees that nobody can be obliged to undergo, against his will, blood-tests in order to find out an infection from HIV, unless it's necessary for clinical purpose and in the patient's interest (see article 5, subsection 3). Within a programme aimed at the study of the epidemic, the above mentioned blood-tests are allowed, but only at the condition that the samples be made anonymous with an absolute impossibility to come to the identification of the concerned persons. Article 5, subsection 4, of the same Act foresees that the disclosure of the results of the blood-test concerning the HIV infection has to be made only to the person to whom the blood-test refers.
For an explanation of the case law evolution concerning the recognition of a right of privacy see the answer to question II 5.
2. How does your legal system define the notion of privacy and what are the protected fields?
Italian law doesn't define in a general way the concept of privacy. The various provisions of the law which have been exposed before show that the explicitly protected fields (only to cite the most important) are the following: domicile, secrecy of correspondence (or of political and religious beliefs of workers or soldiers), right to image, right to secrecy of certain data concerning health. Case law, on the other side, has been recognising for a long time the existence of a right of privacy even out of the above mentioned situations, as, for instance, when news are spread concerning personal events (see the answer to question II 5).
3. Is it possible to renounce this protection?
No special provision foresees a right to renounce to the protection granted by the law to the different aspects of privacy. Anyway, many of the prohibitions which have been mentioned at paragraph I - 2 (see, for instance, the right to image or the right to the secrecy of correspondence: articles 10 of the civil code and article 93, Act 633, 22 April 1941) are explicitly excluded when the concerned person agrees. In conclusion, this means that it's possible to renounce the protection which the Italian law confers to privacy.
4. Does it survive the death of the protected person? Who may exercise those rights?
No provision of the law foresees in a general way that the right of
privacy survives the death of the concerned person. Anyway, it might
be possible to think to apply by analogy the principles concerning
the right to image and copyright, which concede to certain relatives of
the deceased (the surviving spouse, the children, or - failing these persons
- the parents, or - failing these persons - the brothers and the sisters,
or yet - failing these persons - the ascendants and the descendants within
the fourth degree of kin) the right to oppose the publication of the image
of de deceased and of his or her correspondence and of his or her writings
of confidential kind (see Pret. Verona, 19 October 1990, Arch. civ., 1991,
1047; Pret. Firenze 3 mars 1986, Giust. civ., 1986, I, 2279, which allowed
the parents of the victims of the "monster of Florence" to hamper the projection
of a film concerning the death of their children).
In case of disagreement among several persons entitled to the above mentioned rights, it's up to the judge to take a decision. Anyway, the will of the deceased must be respected, when it results in a written way.
5. Does the protection of privacy versus the press
suffer restrictions in relation to certain events or in relation to certain
persons? Has the press certain privileges on this matter?
Consider specially the following situations:
a) historical facts;
b) current facts and reports;
c) civil litigation and criminal proceedings;
d) public figures (candidates to elections, political figures, stars or else).
Italian case law began to be concerned with this problem during the
fifties and the sixties with regard to certain cases of publication of
news concerning the private life of celebrities. In a first group of decisions
the "Corte di Cassazione" denied the existence of a right of privacy (see
the rulings n. 4487, 22 December 1956; n. 3199, 7 December 1960; n. 990,
20 April 1963, which nevertheless declared as unlawful, in certain cases,
the publication of confidential news about the private life of celebrities).
In the mid seventies the "Corte di Cassazione" changed its mind. It began to state, on one side, the right of privacy, but tried, on the other, to find a balance between freedom of press and safeguard of private life. The solution has been found in the principle according to which the diffusion of news concerning privacy is justified when the information comply with a "socially appreciable interest", or to "paramount public interests". Anyway, it's impossible to considerate as existing a "paramount public interest" when the news is spread only to reach commercial or lucrative aims (see Pret. Firenze, 3 mars 1986, Giust. civ., 1986, I, 2279; Trib. Roma, 20 November 1986, Temi romana, 1986, 696; Trib. Roma 16 February 1990, Giur. it. 1991, I, 2, 34, concerning the publication of the divorce file of two show stars).
6. Does your legal system give opposite to the media special and greater rights to a person concerning her image (photography)? If so, by what special means?
Article 96, Act 633, 22 April 1941, foresees that a person's image cannot
be exposed, reproduced or traded, without the consent of the concerned
person. Article 97 of the same Act foresees anyway that this consent is
not necessary when the publication of the image is justified by the popularity
of the person, or by his post. The publication of the image is also justified
by needs of justice or of police, by scientific, teaching related, or cultural
purposes, or when the reproduction is linked to facts, events or ceremonies
of public interest or that took place in public.
Article 10 of the Italian civil code foresees that, when the image of a person, or of his or her spouse, or children, has been exposed or published out of the above mentioned situations, the judge can order that this abuse comes to an end, without detriment to the right to damages. Italian case law has also decided that, when celebrities (politicians, actors, sportsmen) are involved, the only fact of their popularity doesn't justify the publication of the image, when this publication lacks a "socially appreciable interest", as, for instance, when the image of the celebrity is used, against his will, to advertise: see the "Corte di Cassazione" rulings n. 1503, 6 February 1993 (Gino Bartali) and n. 4785, 2 may 1991 (Giorgio Armani); see also the decision of the Milano "Corte d'appello", 16 may 1989, Nuova giur. civ. comm., 1990, 629 (Liz Taylor).
As a conclusion, it can be observed that the Italian law doesn't protect the right to image, opposite to the media, in a special or stronger way as compared to any other means of publication. The only exception can be seen perhaps in the right to rectification which is foreseen by the Act on the press and by the Act on the television and radio broadcasts (see the answer to question II 7).
7. a) What kind of civil sanctions does your legal
system provide when privacy has been invaded by the press?
b) Are they special to the protection of privacy versus the press?
c) Does it provide the possibility to prevent a violation which might occur ("prior restrain")?
d) How does your legal system provide the right to reply?
The right of privacy is (within the above mentioned limits) an absolute
right. This means that all those who unlawfully violate this right must
pay damages to the injured party (see article 2043 of the civil code).
If this kind of tort is at the same time a crime (e.g. the journalist got
the information violating the concerned person's domicile or correspondence),
articles 2059 of the civil code and 185 of the penal code grant the injured
party the right to sue not only for pecuniary damages, but also for pain
and suffering. If the violation constitutes merely a (civil) tort, the
tort-feasor has to pay merely pecuniary damages.
A particular form of "in kind" compensation can be seen in the right to rectification which is foreseen by article 42, Act 416, 5 august 1981, concerning the press. The magazine editor must publish free all the rectifications which have been addressed him, when one's right to image has been violated, or when the periodical has printed acts or opinions which violate the honour of a person or which are simply untrue. The same right has been provided for by article 10, Act 223, 6 august 1990, concerning the television and radio broadcasts.
The Italian law system doesn't explicitly foresee any possibility to take measures in order to prevent any violation of the right of privacy. Law scholars and case law, however, admit that judge can hinder, even by summary proceeding, the potential tort-feasor from divulging in any way the concerned news; the judge can also force any suitable measure in order to stop the attack to privacy.
8. To what extent does your laws protect privacy from the inquisitiveness of the press in regard to personal information stored in data banks of government or of government's agencies (e.q. income tax records, unemployment insurance, social insurance, civil status, medical data)?
Italy hasn't yet been able to deposit at Strasbourg the instrument of
ratification of the Convention, adopted by the Council of Europe on 28
January 1981, for the Protection of Personal Data, even though the Italian
Parliament had authorised the Government to ratify the above mentioned
convention. This is due to the fact that Italy still lacks a general data
While the European Community is preparing a regulation concerning this field, the Italian situation shows currently some scattered provisions.
The most important are surely those of Act 121, 1 April 1981, which assign to the national security division of the Department of the Interior the task to classify, analyse and evaluate the information and the data that must be transmitted by the Police concerning public order and security.
This Act provides for three kinds of protection of the individuals:
a) First of all, it puts some limits to the gathering of information, by stating that it's under any circumstances forbidden to collect information and data about citizens only because of their race, religion or political opinion, or because of their membership in trade-unions, co-operative societies, humanitarian or cultural organisations (see article 7, subsection 2, Act 121/81).
b) Another form of protection lies in providing for some limits to the use of collected and stored information. Article 9, subsections 3 and 4, forbids in any case to utilise the above mentioned information and data in order to reach aims which are not those provided for by the Act. It's also forbidden to let the information circulate inside the Civil Service Administration, out of the cases provided for by the law. Furthermore no judicial decision involving a judgment on a person's behaviour can be based exclusively on data processing.
c) Finally article 8, subsection 4, Act 121/81 foresees that the Civil Service and all the organisations, firms, associations or private citizens who possess computer-based personal data files must notify the existence of these files to the Archives of the Department of the Interior before the 31 December of the year in which the file has been created.
Law scholars think these are general principles, from which it's possible to draw rules applicable to any kind of computer-based personal data files.
In order to complete the outline of the situation, it will be necessary to add something about the bill concerning data protection, currently under discussion before the Italian Parliament.
This bill is aimed to obtain a protection of the individuals against any kind of data banks, either public or private, which are installed within Italy, except the aforesaid data banks of the Department of Interior (see articles 2 and 4) and, generally, of all personal data files concerning public security, or which are aimed to prevent, detect and punish crimes, or which are aimed to protect the State's monetary policy.
The gathering and the retrieval of personal data are permitted only with the consent of the concerned person. Some exceptions are however provided for: in particular when the gathering of data is foreseen by a statute, or when data are extracted by public registers, or yet when the retrieval is only aimed at research or statistical purposes, or finally when it's made within the limits of the journalist profession (article 3).
Personal data must be stored in such a way to reduce as much as possible the risks of unauthorised accesses or any kind of retrievals which are forbidden or not consistent with the aims of that particular data bank (article 7). The bill provides also for the setting up of a public body (Data Protection Authority), to which all the owners of a personal data bank have to notify the existence of these files (article 8).
The bill grants all the concerned people some rights of access: in particular they can know the purposes of the data bank and the degree of secrecy of the stored information (article 10). All those whose personal data have been stored are also entitled to know that such a data bank has been created. They can even obtain that all data which have been unlawfully gathered be cancelled, updated or corrected (article 11).
The Data Protection Authority must also keep the general register of data banks, verify that they be consistent with the conditions provided for by the law and check that these banks be used in the same way as it was stated in the act of notification. The Authority judges also on the petitions of the concerned persons aimed at obtaining the authorisations or the prohibitions to publish certain data provided for by the bill (articles 19 ff.).
9. a) In your country is there a professional organism (press council) qualified to intervene in cases of invasion of privacy by the press?
b) If so, which are its means and powers?
c) Is such an organism able to insure a better protection to the individual?
Currently no professional organism (press council) exists for the protection of the rights of the individuals in cases of invasion of privacy by the press. The protection of privacy can therefore be activated before the judicial power, even by summary proceeding, as it has been explained before. However, the above mentioned Act 223/90 concerning the television and radio broadcasts (articles 10 ff.) foresees that the right to rectification be asserted before a special administrative body (Authority for Radio and Television Broadcasting and for Publishing Activities). Finally, articles 20 ff. of the aforesaid bill concerning data protection, foresees that the concerned persons can deliver their demands of rectification or of cancellation directly to the Data Protection Authority. Against the decisions of this body the parties can address their claims to the tribunal.
Dr. Giacomo OBERTO
Civil Court of Turin