Companies should understand that compliance is a pivotal key to unlock their future, especially in this fast-‐changing age where big data often involves big liabilities. The Supreme Court, confirming the Italian Data Protection Authority’s orientation, highlighted that algorithms should be designed by always balancing the company’s benefit and the fairness towards users.
Since 2011, a considerable number of claims have been filed with the Italian Data Protection Authority (hereinafter, the “Garante" or the "IDPA”) in connection with the so-‐called "silent calls". The investigations carried out by the IDPA, including inspections, were focused on monitoring, assessing, also from a technical standpoint, and verifying compliance with personal data protection legislation, specifically with Section 11 (fairness principles) of the Legislative Decree n. 196/2003 (hereinafter, the "Code"). As a result, the Garante issued some crucial provisions, such as “Prescriptions for so-‐called “silent” commercial calls” (2011) and the “General resolution on so-‐called silent calls” (2014).
Now, by means of sentence no. 2196/2016, the Supreme Court ruled that the users’ prior and express consent is necessary in order to (i) make silent calls and (ii) contact telephone numbers which are not included in public telephone directories. Accordingly, the Court stated that the processing relating to silent calls shall be deemed as equivalent -‐ under the aforementioned fairness principles -‐ to those referred to automated tools.
The ruling thus confirms the opinion repeatedly expressed by the Garante: setting out the way of processing the personal data of telemarketing initiatives recipients, the data controller -‐ also by means of a data processor – must also take all the measures that are both necessary and appropriate, including technical measures, to ensure that the processing is performed in compliance with fairness principles. The issue mostly relates to the use of appropriate algorithms, but its impact must be taken into account by the whole telemarketing sector.