Thanks to Mate Aleric for collaborating on this article
Some parties have a legitimate interest in shielding their involvement in judicial proceedings from the general public—for instance, when a docket contains details about product development or corporate organization. Others need to retrieve precedents involving competitors in matters that could happen to them as well. The Italian legislator balanced these conflicting interests with the need to guarantee the transparency and accountability of the judiciary.
In principle, public access to judicial records is the rule, and anonymity is the exception. Below, we present an overview of the applicable statutory framework.
Access to judicial records
The principle of public access to judicial records outside of the proceedings in which they were issued ensures that justice is administered in a fair and predictable manner. As such, it derives from the Italian Constitution.[1]
Different rules govern access to judicial records in civil and criminal proceedings.
Civil proceedings:
- Judgements and other final decisions are usually publicly available.
- If a decision is not available online, any interested party can request copies.[2]
- “Any public depository authorized to send a copy of the documents it contains must issue an authentic copy, even if the applicant or its authors were not party to the document, under penalty of damages and expenses.”[3] This rule applies only to judicial decisions that have effects outside of the proceedings (g., judgments, orders, and injunctions, but not procedural orders, such as those admitting evidence or scheduling hearings).
- Conversely, filings can only be accessed by parties to the proceedings and by their counsel.[4]
Criminal proceedings:
- It is generally more difficult to access judicial records in criminal proceedings because the principle of public access is balanced with other, overriding interests (investigative effectiveness and secrecy, presumption of innocence, etc.).
- Accordingly, “any interested person may, at their own expense, obtain the release of copies, extracts, or certificates of individual documents,” but “the request is processed by the public prosecutor’s office or by the judge who is presiding at the time the request is submitted or, after the proceedings have been concluded, by the chair of the panel or the judge who issued the dismissal or judgement.”[5]
- While in civil proceedings copies are released automatically by the clerk’s office upon request, the release of copies in criminal proceedings is at the discretion of the judicial authority.
- Recently passed legislation guarantees the presumption of innocence in the media.[6] Inter alia, it stipulates that the dissemination of news concerning ongoing investigations and criminal proceedings may only take place through official announcements or press conferences and on the condition that “it is strictly necessary for the continuation of investigations” or if there are “other specific reasons of public interest.”
Request for anonymity
The Privacy Code[7] is designed to facilitate development of legal information in accordance with the principles of data protection. The latter are guaranteed by means of a procedure for the anonymization of judicial decisions (and arbitration awards).[8]
Specifically, the Privacy Code contemplates three alternative grounds for anonymization:
- Anonymization upon request—the interested party can file a request based on legitimate grounds with the clerk or with the secretary before a decision is reached in that instance of the proceedings.
- Anonymization ex officio—absent a request, the judge can grant anonymity to protect the rights or the dignity of the interested parties.
- Anonymization as a matter of law—decisions concerning victims of acts of sexual violence and the personal data of minors and parties to proceedings concerning family relations and status of persons are anonymized as a matter of law.
On the first two grounds, the authority issuing the decision grants anonymity by decree, with no need for further formalities. The clerk or the secretary then annotates the decision with the following phrase: “In case of dissemination, omit personal details and other identifying data of [party].” The third ground imposes anonymization regardless of whether a judicial decree was issued. Finally, “[o]utside of the cases contemplated in the present article, the dissemination, in any form, even integrally, of the content of judgements and of other judicial decisions is allowed.”
Legitimate grounds for anonymization
On December 2, 2010, the Italian Data Protection Authority issued Guidelines on the processing of personal data in the reproduction of court orders for purposes of legal information. The guidelines deal only with the processing of personal data for purposes of legal information (i.e., documentation, study, research, etc.), not for the purposes of administration of justice or for journalistic purposes. In this context, the dissemination of judicial decisions is described as “a valuable source for the study and development of legal culture and an indispensable tool for democratic control over the exercise of judicial power.”
The guidelines specify that: (i) any interested person may submit a request for anonymization, irrespective of their participation to the proceedings; (ii) the request for anonymization has to contain legitimate grounds such as “the sensitivity of the subject matter or the particular nature of the data contained in the decision (e.g., sensitive data)“; (iii) if the request is granted, anonymization is only imposed in the context of data processing for the purpose of legal information.
On August 10, 2021, the Court of Cassation clarified that there is no duty to assess the legitimacy of a request for anonymization unless such a request is motivated.[9] As to the legitimate grounds justifying anonymization, the court observed that “this is one of those general clauses that must be interpreted in accordance with the fundamental principles of the legal system, striking a balance between the individual interest in confidentiality and the general principle of public access to judicial decisions and of the integral content of judgments, as an instrument of democracy and legal information.” Accordingly, the court found that “a tax dispute based on the different interpretation that the taxpayer and the Treasury offer of a legal provision does not contain any sensitive data, nor is it a particularly delicate matter, such as, for example, those that affect personal rights; since there is no imputation of unlawful conduct, the honor and reputation of the parties are not in question either.”
Conclusion
In conclusion, judicial decisions are generally not confidential, but this does not mean they are always publicly available. If a judicial decision is not available in online legal databases, it is necessary to request a copy in accordance with the provisions analyzed above. While in civil proceedings these requests are granted as a matter of law, the applicant has to adequately identify the decision by providing information that is not always easy to obtain (e.g., the docket number). It follows that it is not always easy to retrieve precedents.
Anonymization can only be granted on legitimate grounds (e.g., the sensitivity of the subject matter). In general, it is not imposed for the processing of personal data for purposes such as administration of justice or legal information. Processing for different purposes (e.g., journalism) could, however, require anonymization as part of the principle of minimization or of the requirement of “essentiality of information.”[10]
[1] Arts. 24 (right of defense), 101 (justice administered in the name of the people), and 111 (due process).
[2] Sections 743 and 744 of the Code of Civil Procedure.
[3] Section 743 Code of Civil Procedure.
[4] Section 76 of the Implementing Provisions of the Code of Civil Procedure.
[5] Section 116 of Italian Criminal Procedural Code.
[6] Legislative Decree No. 188 of 2021 implemented Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings.
[7] Legislative Decree, June 30, 2003, No. 196.
[8] Section 52 of the Privacy Code.
[9] Cass., August 10, 2021, No. 22561.
[10] Section 6 of the Deontological rules on the processing of personal data for journalistic purposes.
