The Italian Data Protection Authority (‘IDPA’) recently returned to the issue of corporate email metadata retention by the employer. The order of 6 June 2024, entitled “Computer programs and services for the management of e-mail in the workplace and processing of metadata”, extends the retention period for metadata from 7 to 21 days. This new decision, no. 364 of 6 June 2024, arrives several weeks after the publication of a first version of the guidance document on metadata retention, which had given rise to confusion and discussions among professionals to the point of leading the IDPA to start a public consultation.
First of all, however, it is necessary to clarify the definition of “metadata”. This term does not mean information contained in the “body” of the email but rather the information relating to the sending, receiving and sorting the messages. This may include the email addresses of the sender and of the recipient, the IP addresses of the servers or clients involved in the routing of the message, the times of sending, retransmission or reception, the size of the message, the presence and size of any attachments and, in certain cases, depending on the email management system used, may also include the subject of the message sent or received.
As mentioned above, the IDPA’s guidelines have extended the retention period to 21 days, a time period which is, in any event, to be considered indicative.
Metadata retention beyond this time frame is only permitted if particular conditions making the extension necessary are satisfied and adequately proven.
Continue reading the full version at Economy Magazine.
“Ethical codes, management and control models, and sustainability certifications are meaningless when, for the sake of achieving the highest profit at the lowest possible cost, a production system is allowed to be created down the chain that is based on production with an exploited workforce”.
This is the conclusion of the Public Prosecutor at the Milan Prosecutor’s Office in his final considerations presented to the Court of Milan following investigations carried out by that office for the crime of unlawful intermediation and exploitation of labour in the supply chain of a well-known company operating in the fashion sector.
As a result of the investigations carried out, it emerged that the company used a work contract to appoint third-party companies to carry out the entire production process. However, these third parties only provided sampling of materials. The third-party companies, in turn, outsourced the actual production of the entire line to sub-suppliers who employed unlawful, non-EU labour, in breach of the regulations on occupational health and safety, working hours and minimum wages, all of which are indicators of serious exploitation of labour which however allowed costs to be reduced.
In light of all this, with a decree of 3 April 2024, the Court of Milan ordered, as a preventive and non-sanctioning measure, the judicial administration of the client company for a period of one year. Although it did not directly carry out the unlawful conduct, the Court found that the company never effectively monitored the production chain, “by verifying the real business capacity of the companies with which it entered into supply contracts and the actual production methods adopted by them, and that it had remained inactive even when it became aware of the outsourcing of production by the supplying companies and had failed to take any action”.
With the same decree, the Court ordered, among other things, that the judicial administration examine the structure of the company with particular reference to the organisation and management model drawn up under Italian Legislative Decree no. 231/2001 and specifically the provisions regulating the relationship with suppliers and production chain audits.
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In conclusion, also in the light of recent events, it is becoming increasingly evident how effective implementation of an Organisation and Management Model allows the company to not only achieve continued improvement in performance but also to comply with the applicable legal requirements. In addition, effective implementation inevitably entails the adoption of Models that are adapted to the company’s business and that prevent the risk of committing a criminal offence.
Although the adoption of Organisation and Management Models is ultimately discretionary, it is now obvious that they are tools that allow the company, on the one hand, to prevent the commission of offences and, on the other, to limit (if not exclude) its liability, avoiding serious consequences in terms of sanctions, financial repercussions and reputational damage.
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With order no. 364 of 6 June 2024 called “Computer programs and services for the management of e-mail in the workplace and metadata processing”, the IDPA has returned to the topic of company e-mail metadata retention.
“Metadata” does not mean information contained in the “body” of the email but rather the information relating to the sending, receiving and sorting the messages. This may include the email addresses of the sender and of the recipient, the IP addresses of the servers or clients involved in the routing of the message, the times of sending, retransmission or reception, the size of the message, the presence and size of any attachments and, in certain cases, depending on the email management system used, may also include the subject of the message sent or received.
With respect to the IDPA’s guidelines before the public consultation, the guidelines of 6 June 2019 extended the retention period to 21 days.
This retention period is merely “indicative”.
Retention for longer is only permitted if specific conditions that make the extension necessary are satisfied and are adequately proven.
Applying the principle of accountability, it is therefore up to each employer to adopt all technical and organisational measures to ensure compliance with the principle of purpose limitation, selective accessibility by only authorised and adequately trained individuals and the tracking of access carried out.
These requirements must be met while keeping in mind that generalised metadata collection and retention can lead to indirect remote control of workers’ activities and, in this case, the safeguards provided for by Article 4 of the Workers’ Charter apply i.e., it is necessary to enter into a union agreement or, failing that, obtain authorisation from the National or Local Labour Inspectorate.
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Data has become the new oil and its role is likely to grow further as digital becomes more central to our lives. This has important implications for privacy, as Vittorio De Luca, founder of the law firm De Luca & Partners, points out. “the EU legislator has intervened significantly in this area over the last few years. However, at corporate level the position is divided into companies that have implemented and structured real internal compliance models and over time have managed to change the culture and sensitivity of all those who make up the organisation, while others continue to consider data protection as a company cost rather than an investment”, he points out.
Personal data protection legislation and employment law are now closely linked, not only with regard to the processing of human resources data. “Increasingly, we are assisting companies in how to correctly manage requests for access to documents and personal files that are – legitimately – submitted by employees as part of disciplinary proceedings against them”, he points out. “In addition to the consequences on the employment law front, a data subject (in this case, the worker) has always the right to make a report to the Italian Data Protection Authority”, explains Mr De Luca.
Continue reading the full version published in La Repubblica.
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The Italian Data Protection Authority (‘IDPA’), with a Ruling of 7 March 2024 [announced in the Newsletter of 3 May 2024] upheld a complaint filed by a worker who had asked her former employer company for access to her personal file to find out what information could have given rise to a disciplinary sanction against her.
The company had not given an adequate response to the request and had only provided an incomplete list of the documentation collected, omitting information which formed the basis of the disciplinary sanction which was then imposed. The omitted information was only provided to the worker after the start of the IDPA’s investigation.
In its note of reply, the company claimed that it had not provided the worker with the above-mentioned documentation in order to protect its right of defence in court as well as the confidentiality of the third parties involved. The company also alleged that the complainant lacked standing to access the information, since it had been requested at a time when the disciplinary proceedings could no longer be challenged.
The IDPA reiterated that the right of access recognised by Regulation (EU) 2016/679 (‘GDPR’) is intended to allow the data subject to exercise control over his or her personal data and to verify its accuracy. Consequently, this right cannot be denied or limited depending on the purpose of the request. In fact, according to the provisions of the GDPR, data subjects are not asked to indicate a reason or a particular need to justify their requests to exercise their rights, nor can the data controller verify the reasons for the request.
Therefore, access to personal data cannot be denied because the data requested could be used by the data subject to defend himself or herself in court in the event of dismissal.
“The jurisprudence has on several occasions reiterated that the right of access derives, in addition to the legislation on personal protection data, from the ‘respect for the principles of good faith and fairness incumbent on the parties to the employment relationship under Articles 1175 and 1375 of the Italian Civil Code. This is confirmed by the fact that, for some time, the relevant sector’s collective bargaining agreement has provided that the employer must keep, in a special personal file, all the deeds and documents produced by the entity or by the employee himself or herself, which relate to his or her professional development, the activity performed and the most significant facts concerning him or and that the employee has the right to freely view the deeds and documents included in his or her personal file’ (Italian Court of Cassation, 7 April 2016, no. 6775)”.
Based on the points set out above, the IDPA imposed a fine of EUR 20,000.00 on the company.
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