How many times have we heard people say ‘you can write anything on the internet’, or have we come across fake news or content that conveys a false message? Add to that the bombardment of advertisements, sometimes invasive, that terrify us with how targeted and aimed at us and our interests they are. Sometimes we doubt their legality and resign ourselves to believing that everything about us is now public property, that everything is lawful. Don’t worry, that is not the case, fortunately there is a discipline called Commercial Communications Law that protects us.
When does communication respect the law and when does it violate it?
To encapsulate in an article the Italian legal history of communication would be not only impossible, but also very boring, we are aware of that. Let us try, therefore, to list the stages and fundamental junctions that regulate the activities of those who work in this field and those who frequent it on the user side.
Are we free to publish whatever we want on the web? No, not really.
Thanks toArticle 21 of the Constitution, we are guaranteed the freedom of information in its three forms: the freedom to transmit, search and receive information, In addition, Articles 2 and 3, which respectively protect the inviolable rights of man and guarantee freedom of thought and equality between individuals, are the basis of our freedom, but not only.
So, can we really write whatever we want on the web? The same question arose when the main media were the press and television. The answer is no, to the same effect as the aforementioned Articles 2 and 3, which not only guarantee freedom of information, but also determine its limits.
In fact, it is not possible to publish content:
- defamatory (injury to reputation);
- communicating personal data without consent (breach of confidentiality);
- discriminatory;
- inciting;
- manifesting offences of opinion.
Let us omit the last issue, which concerns offences committed against the personality of the state and the speech inherent in discrimination and incitement, which are actions usually the result of a choice and not a mistake. We therefore focus on the first two points that can be a trap not only for communication experts, but also for ordinary users.
Reputation and confidentiality differ only in one characteristic: the former is a public communication of false and denigrating content, the latter concerns true content, positive, negative or neutral makes no difference, communicated without the permission of the person concerned.
The communication may not harm a person’s public image, which is why defamation is punishable by law subject to three mitigating factors that must be present: truth of the information, social utility and formal continence.
What happens if defamatory sentences spoken by the interviewee are reported in an interview? The law provides that responsibility lies with the person who leaked certain phrases if the interviewee is a well-known person and there is a public interest: in these cases, the person who transcribes and publishes the interviews is not guilty of wrongdoing.
The question of breach of confidentiality, which, as we have seen, occurs with the publication of personal data of third parties, is different.
Personal data means all information that identifies a person or makes them identifiable. Sensitive data (ethnic origin, religious beliefs, political opinions, membership of parties or associations of various kinds, etc.) and ultra-sensitive data (health condition and sexual sphere) are subcategories of personal data. Here too, there is the exemption of the notorious person and the public interest.
The Privacy and Data Protection Regulations
The current sources on privacy protection in Italy are the EU Regulation 2016/679 and Legislative Decree 101/2018, which replaced the previous Privacy Code of 2003, adapting to the directives coming from the European Union.
As we have said, personal data are those that allow a person to be identified and, among the many, includes theemail address. Therefore, in order for a social network, a brand, a newspaper or whoever to send you content via email requires your consent before sending it, but not only. Consent, in fact, must respect four characteristics.
It must be:
- informed (the Homeric poem that no one mistakenly ever reads);
- free (the square for consent must be blank when accepting the processing of the personal data indicated in the information notice that you skipped reading); and
- specific;
- unambiguous.
