Protezione dei dati personali e autonomia negoziale

The A. firstly argues about personal data protection in the Italian Civil Code, particularly with regard to name and image, and investigates the reasons of its development as data processing rules that afford a high level of protection to personality rights, especially confidentiality, personal identity and dignity. The analysis focuses on the circulation of personal data on the market and particularly on contracts in which data subjects’ consent to processing could not be given freely or be required. The A. explains not only the functions of consent but also the risk of confusion between consent to data processing and consent to contract. The analysis aims to demonstrate that personal data are goods with a separate legal status. In fact they may not be the subject of negotiations in the same way of all other categories of goods exchanged on the market, whilst one may negotiate whether (an) and how (quomodo) personal data may be processed. Personal data processing may be the possible subject of negotiated agreements, as well as the rules applying to the processing as set out by Data Protection Authority are to be regarded as safeguards aimed at enhancing openness and fairness in contractual relationships. The conclusive reflections regard the investigation of the ‘binding corporate rules’ and of other model clauses that are frequently used in international contracts for the purpose of protecting data subjects’ rights in intra-group data transfers and data transfers to third countries.