Massive advertising communication under GDPR: Spamming does not constitute criminal offence.
In absence of prejudice for the data subject, aggressive advertising communication does not constitute an offence. Italian Court of Cassation has confirmed that, in the context of spamming activity, data subject harm has a central role.
Art. 167 of Italian Privacy Code finds guilty whoever, in order to gain profits for himself or harm somebody, process personal data in breach of art. 18, 19, 23,126, and 130. Moreover, in the event of data subject prejudice, the same conduct also breaches art.129 of Italian Privacy Code.
After the entry into force of General Data Protection Regulation, the Italian Privacy Code has been reformed by legislative decree n. 101/2019 that confirmed double psychological element of offence: harming the data subject or gaining profit from the illegitimate data processing.
Before the reform, a first interpretation entailed that only data subject harm constituted an objective liability condition of the actor. Data subject harm shall be interpreted as legal prejudice including both economic and non-economic consequences.
In the present case, data subjects did not suffer any relevant legal prejudice caused by spamming. Subsequently, in order to punish spamming activity, data subject shall suffer an effective harm entailing a concrete prejudice of his private sphere