Do you know that if you receive an email from an employee of your organization requesting you to update his or her bank details and informing you of the new bank account (IBAN) on which to credit their next salaries, it could be a fraud?
Some cyber criminals, by setting up a fake employee mailbox or directly hacking into an employee’s company mailbox, are increasingly sending fake messages to HR managers informing them that they have changed their bank account (IBAN). Reporting the new bank details, which are obviously controlled by the fraudster, they request that future salaries be accredited there.
How to protect your organization?
But that is not all. Please consider that improper processing of personal information exposes an organization to the risk of incurring one or more of the breaches set out in the privacy regulations.
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The Italian Data Protection Authority sanctioned the company Foodinho S.r.l., a Glovo Group company, to pay a fine of EUR 5 million for unlawfully processing the personal data of more than 35,000 riders through its digital platform.
Following a complex investigation carried out ex officio by the Authority, it revealed that the company, which had already been sanctioned in 2021 for unlawful processing and violations of the provisions of the privacy legislation, was carrying out “numerous and serious violations” of the GDPR.
Among others, the company:
In addition to the numerous violations of privacy regulations pointed out by the Italian Data Protection Authority and partially reported herein, it is worth mentioning that the Authority highlighted that in this case, the company “while carrying out an activity of systematic control of the work performed by the riders, through the settings and functions of technological tools that operate remotely (digital platform, app, communication recording systems), […], did not comply with the provisions established by Article 4, paragraph 1, of Law no. 300/1970, as it did not verify that the tools used are attributable to the purposes strictly allowed by the law (organizational and production needs, work safety and protection of the environment, and protection of the environment) nor did it activate the guarantee procedure provided for in the event of the existence of one of the aforementioned purposes (collective agreement entered into with trade union representatives or, failing that, authorization by the Italian Labor Inspectorate)”.
In other words, the company, in addition to implementing technical and organizational security measures aimed at eliminating breaches and ceasing unlawful processing of personal data, must also take appropriate measures to comply with the provisions of the Workers’ Statute on remote control of employees.
Other related insights:
Compliance, Agency Contracts, and Privacy Management: A Growing Complexity
The law firm De Luca & Partners and HR Capital have recently highlighted significant issues in strategic areas such as contract management, regulatory compliance, and data protection. These areas, critical for Italian companies, are confronted with evolving regulations that demand increasing attention to avoid economic and reputational consequences.
A recent ruling by the Court of Rome reclassified the commercial collaboration agreements between a company and certain influencers—entrusted with promoting the company’s products through social media channels—as agency contracts. As a result, the company was ordered to pay the omitted contributions to Enasarco following the reclassification.
The reclassification of commercial contracts as agency contracts may also entail a significant economic impact for companies, including the obligation to pay the influencer/agent an end-of-contract indemnity, typically calculated based on the average annual compensation earned by the influencer/agent over the past five years. In light of this, companies would be well-advised to update their financial statements with targeted provisions and properly classify existing contracts to address any irregularities.
However, according to the firm’s name partners, Vincenzo De Luca and Vittorio De Luca, many companies have yet to grasp the urgency of adequately regulating contractual relationships.
Compliance with the genuineness requirements for subcontracting agreements is now under close scrutiny by authorities. The legislator has recently tightened the consequences for both clients and contractors in cases of “non-genuine” subcontracting, where irregular labor provision occurs, introducing criminal penalties as well.
To be deemed compliant, a subcontract must meet three key criteria:
The reintroduction of criminal penalties in March 2024 adds further pressure on companies to ensure the transparency and independence of subcontracting relationships.
As of October 1, 2024, the new “Credit License” system has come into force, requiring a series of formalities for those operating on construction sites or significant engineering projects within Italy. This certification, which includes documents such as the DURC (certification of compliance with social security contributions) and the DURF (tax compliance certification), is essential for compliance with workplace health and safety regulations.
Foreign companies operating in Italy must also meet these requirements unless they hold an equivalent certification issued by their home country. Lawyer Vittorio De Luca explains that the “Credit License” applies to foreign companies involved in real estate and infrastructure projects or in data center installations.
Privacy and personal data management have become critical focal points for Italian companies, particularly given the stringent penalties for GDPR violations, which can reach up to 4% of the global annual turnover.
Dr. Martina De Angeli notes that recent investigations by the Milan Public Prosecutor’s Office have revealed that weak IT security systems can lead to unauthorized intrusions with severe consequences. In addition to reporting any data breach within 72 hours—a very short timeframe from an operational perspective—companies must constantly monitor their systems, train staff, and implement continuous control and monitoring processes.
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“The employer cannot access the employee’s or collaborator’s e-mail or use software to store a copy of the messages. Such processing of personal data not only constitutes a breach of the data protection laws but also amounts to an unlawful control activity over the employee”.
This has been stated by the Italian Data Protection Authority, which sanctioned a company with a fine of EUR 80,000, with decision no. 472 of 17 July 2024, published in the institutional newsletter published on 22 October 2024.
The case originated from a complaint submitted to the Authority by a former collaborator of a company, who reported that the company had maintained his email account active and accessible even after the termination of his collaboration.
The investigation revealed that the company had commissioned a forensic engineering firm to investigate the contents of the collaborator’s email using the “Mail Store” application installed on company’s laptops. During the collaboration, the company had backed up the email inbox and had retained both the content and access logs for the mailbox and the management system. The e-mails collected through the application had then been used in a legal proceeding brought against the complainant before the Court of Venice.
Furthermore, the company, based on the document titled “Equipment used by the worker to perform work activities and tools for recording access and attendance – modalities and limits of use”, attached to the notice given to the complainant as a collaborator and directed at the company’s employees, processed data from corporate e-mail accounts in violation of data protection regulations. The document informed that the company could access the emails of employees and collaborators for the purposes of business continuity, in case of absence or termination of the relationship, but did not mention the backup process or the corresponding retention period.
The Authority stated that the systematic retention of e-mails – in this case, communications were stored for three years following the termination of the collaboration – and the systematic retention of access logs for the e-mail and management system used by the employees were not compliant with the applicable laws. The retention was deemed disproportionate and unnecessary for achieving the company’s stated purposes of ensuring the security of the IT network and the continuity of the company’s business activities.
This also allowed the company to reconstruct the complainant’s activities in detail. The Authority noted that “even if, hypothetically, such processing were aimed at achieving one of the purposes explicitly indicated in Article 4, (1), of Law no. 300/1970, it appears that the company did not activate the guarantee procedure provided therein (agreement with the workers’ representatives or, failing that, authorization by the Labor Inspectorate)”.
Lastly, as far as the use of the data in a judicial context is concerned, the Authority recalled that processing carried out by accessing an employee’s e-mail judicial protection purposes refers to disputes already in progress and not to abstract and indeterminate hypotheses of protection, as in the case under review.
The Court of First Instance of Udine (Labour Section, order no. 504 of 2 August 2024) declared lawful the measure of suspension from work and remuneration, imposed by a company on an employee who had refused to sign the letter sent to the person responsible for processing personal data, in accordance with the applicable data protection law (please also refer to Ntpluslavoro of 26 September).
The Court of First Instance stated that, as a result of a circumstance caused by the employee’s will and, in any event, beyond its control, the company found itself in a situation in which it was obliged to suspend the employee’s services and remuneration. If it had not done so, it would have breached the rules of guarantee provided for by the data protection legislation and would inevitably entail the risk of incurring the sanctions provided for.
The employer entrusts the employee not only with adequate resources and tools to ensure the correct processing of personal data, but also with the responsibility to process such data with confidentiality, fairness and diligence. While it is therefore true that the appointment of a designated person is unilateral in nature, since it is an act emanating from the employer, it is equally true that the employee’s failure to accept it, will have consequences for the management of the employment relationship, which will be felt at several levels:
Also because of these considerations, the Court of Udine stated that the refusal to accept the appointment as an authorized subject was sufficient to justify the adoption of the disciplinary measure of suspension from service and remuneration.
The specific case inevitably prompts the query as to what the effects and consequences are, or could be, for the employer who is faced with the hypothesis that an employee does not accept the assignment to a person authorized to process personal data or even expresses the intention to withdraw a previously provided acceptance.
Logically, but for the sake of completeness of the argument, it is also worth mentioning briefly, the question does not arise if the tasks assigned to an employee do not involve the processing of personal data. In the opinion of the author, the question does not arise for two reasons. On one hand, it would be illogical and unnecessary to authorize and instruct an employee who does not process personal data in performing his/her work activities. Article 29 of (EU) Regulation 2016/679 (the GDPR) and Article 2-quaterdecies of the Italian Legislative Decree no. 196/2003 provide that it is those who have “access to personal data” and not those who do not carry out any processing operations, who shall be instructed. On the other hand, the refusal of those who do not have access to personal data does not affect the performance of their daily work. Therefore, even in the latter case, no potentially relevant behaviour from a disciplinary standpoint would be identified.
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