Compensation for unlawful processing of personal data: The use and possible negative consequences of presumptive evidence

The Court of Appeals of Rome recently issued judgement No. 258/2022 in a dispute concerning the unlawful processing of personal data, awarding the appellant compensation for damages on the basis of presumptive evidence. While the use of presumptive evidence may help in cases where it is exceptionally difficult to provide evidence of the harm suffered, it may also lead courts to automatically award a certain amount of money to the plaintiff without concrete evidence that the plaintiff actually suffered any harm, be it pecuniary or non-pecuniary.

Factual background

The dispute arose several years ago, when a well-known Italian newspaper published a piece of news about dozens of private Italian investors who had been defrauded. One of the victims of the fraud was a relative of a well-known politician, and the newspaper published his full name, as well as the amount of money he had lost due to the fraud. The politician’s relative brought a lawsuit before the Court of Rome, alleging that the newspaper violated his right to privacy and unlawfully processed his personal data and seeking to be compensated for damages—both pecuniary and non-pecuniary—suffered due to the publication of his full name in the article.

The Court of Rome, following the case law of the Supreme Court of Cassation, dismissed the plaintiff’s case, finding that he had failed to satisfy the burden of proving that he suffered harm due to the purported violation of his privacy.

The plaintiff appealed the judgement of the Court of Rome, claiming that the court’s legal reasoning was erroneous and groundless in stating that the plaintiff failed to provide concrete evidence of the harm for which he sought compensation.

The ruling of the Court of Appeals

The Court of Appeals of Rome upheld the appeal and revised the judgement issued by the Court of Rome. Preliminarily, the appellate court found that the news had been the subject of significant national media coverage due to the amount of the fraud and the high profile of the individuals involved. The court also noted that after the plaintiff filed his complaint, the Garante Privacy (hereinafter the “Garante”) stated that newspapers should limit the dissemination and disclosure of personal data when such data are not essential or relevant to the news.

The Court of Appeals found that both the Supreme Court of Cassation and the Ethics Code of Journalists provide a clear rule: a journalist shall limit the personal data in an article if said data is not essential to the article itself. Properly interpreting and assessing Section 137 of Legislative Decree No. 196/2003 (the “Privacy Code”), the court contended that it was neither necessary nor essential to include the name of the plaintiff in the article, and thus the newspaper breached and violated the plaintiff’s right to privacy.

Turning to compensation for damages, while the Court of Appeals noted that damages cannot be in re ipsa, as plaintiffs bear the burden of alleging and providing evidence of the seriousness of the harm suffered, it reasoned that such damages can be proved by presumptive evidence.

The Court of Appeals contended that several circumstances could prove that the plaintiff actually suffered damages: the coverage and dissemination of the news at a national level, the article being published in a nationwide newspaper, and damage to the plaintiff’s professional business as counsel. The Court of Appeals pointed out that the news damaged the plaintiff’s professional standing, as it may have led individuals (including clients) to think that he was superficial in managing his private investments.

While the Court of Appeals found that the plaintiff failed to substantiate and prove that he suffered any pecuniary damages, it also held that it was reasonably proved that the plaintiff suffered non-pecuniary damages following the violation of his right to privacy, which the court sought to determine in an equitable manner.

Concluding remarks

In issuing its judgement, the Court of Appeals of Rome sought to strike a balance between a data subject’s right to privacy and the right to inform/freedom of the press. The at-issue judgement shows that providing concrete evidence of harm in disputes concerning violation of privacy is often extremely difficult, if not outright impossible, and therefore presumptive evidence may be used to ascertain whether a plaintiff actually suffered any harm.

In today’s society, the right to privacy and the protection of personal data are indisputably fundamental rights of every individual, protected at both a national and European level. To some extent, providing evidence for this kind of harm may be difficult and could result in leaving data subjects with no compensation whatsoever even after one of their fundamental rights has been violated. However, the rationale behind the strict burden of proof of damages suffered is to avoid awarding individuals exorbitant amounts of money when the harm they have suffered (if any) cannot be considered serious.

To avoid that scenario, the use of presumptive evidence should be marginal, and it should not be used to relieve the plaintiff of the burden of proof. Indeed, abusing presumptive evidence may lead courts to award damages automatically after the violation of a right has occurred (known as “damages in re ipsa)—in contrast to the clear teachings of the Court of Cassation.[1] Ultimately, this could lead to an increase in lawsuits filed to seek compensation even when plaintiffs have suffered mere trivial distress or have not suffered harm at all. Therefore, it is preferable for compensation for damages to be based not on presumptive evidence, but on concrete evidence.

[1] See Supreme Court of Cassation, decision No. 9385 of April 16, 2018, which clearly found: “The non-material damage due to infringement of fundamental rights cannot be ‘in re ipsa’ but must be proved by those who seek compensation […].The harm to honor and reputation for which compensation is claimed is not in re ipsa, since damages eligible for compensation are identified with the consequences of such harm, rather than with the harm to the interests protected by the law, so that the existence of such non-pecuniary damages must be those alleged and proven” (our emphasis). Moreover, Court of Cassation judgement No. 14168 of May 26, 2021, found: “It is crucial to observe that the unlawful processing of personal data per Legislative Decree No. 196 of 2003, ex art. 4, identifiable as a tort pursuant to Section 2043 [of the Italian Civil Code], does not determine automatic compensation for damages because the harm (non-pecuniary and/or pecuniary) must be proved by the injured party in accordance with ordinary rules, whatever the size and difficulty of fulfilling the burden of proof, since it is a damage-consequence and not a damage-event, without any relevance in the opposite sense of its possible framing as non-pecuniary damages from harm to constitutionally guaranteed rights” (our emphasis).

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