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Italy: Tribunal of Rome issues decision dismissing Garante's resolution on SMS/MMS direct marketing

OneTrust DataGuidance confirmed, on 11 February 2020, with Giulio Coraggio and Maria Eugenia Finocchio, Partner and Legal Trainee respectively, at DLA Piper Italy, that the first section of the Ordinary Tribunal of Rome ('the Tribunal') issued, on 1 August 2019, its decision No. 10789/2019 ('the Decision'), dismissing the appealed Italian data protection authority's ('Garante') resolution No. 437 of 2016 ('the Resolution').

In particular, Giulio Coraggio and Maria Eugenia Finocchio commented, "With the Decision, the Tribunal ruled on the appeal filed by Wind Telecomunicazioni S.p.A. against the Resolution, as issued by the Garante. The subject-matter of the dispute is the commercial campaign carried out between 2015 and 2016 by Wind, involving the sending of text messages to clients and prospective clients in order to request their consent to receive advertising or promotional communications.

In the appealed decision, the Garante found that Wind acted in violation of the provisions of the Personal Data Protection Code, Legislative Decree No. 196/2003 ('the Data Protection Code') and thus fined the same, also prohibiting further processing.

The Tribunal instead found that the provision laid down in Article 130 of the Data Protection Code, which requires that users' consent is necessary "to send advertising or direct sales communication or to carry out market research," does not apply in the case at stake. In fact, said provision provides for the prohibition of advertising or promotional activities in the absence of users' consent, but does not exclude the sending of messages aimed precisely at obtaining such consent, to be expressed subsequently by users and aimed at receiving future communications concerning commercial offers by Wind.

In this regard, [the Decision states that] Wind's activities cannot be considered processing of personal data for marketing purposes, since there is no promotional activity for a commercial product or advertising activity in the stricter sense. On the contrary, by requesting users' consent (which will eventually be expressed through a future and separate message), Wind's activities must be deemed as complying with the provisions of the Data Protection Code. The Tribunal has thus revoked the resolution of the Garante."

You can read the Decision, only available in Italian, here.