ITALY Law and Practice Contributed by: Paolo Balboni, Luca Bolognini, Nicolò Maria Salvi and Davide Baldini, ICT Legal Consulting
rights and freedoms and legitimate interests – at least the right to obtain human intervention on the part of the controller – to express their point of view and to contest the decision. Lastly, it is likely that an AI tool is also subject to the Data Protection Impact Assessment requirement under Article 35 of the GDPR. 1.6 Data Breach Requirement In the case of a personal data breach, the data con - troller shall, without undue delay and where feasible no later than 72 hours after having become aware of it, notify the personal data breach to the GPDP, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Such notification should at least: • describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; • communicate the name and contact details of the Data Protection Officer or other contact point where more information can be obtained; • describe the likely consequences of the personal data breach; and • describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, meas - ures to mitigate its possible adverse effects. Where the notification to the authority is not made within 72 hours, it shall be accompanied by reasons for the delay. In addition, where and in so far as it is not possible to provide all the information at the same time, the information may be provided in phases with - out undue further delay. When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, in addition to the notification described above, the data controller shall also communicate the personal data breach to the data subject without undue delay, describing in clear and plain language the nature of the personal data breach and the same above-men -
tioned information. Such communication to the data subject shall not be required if: • the controller implemented appropriate techni - cal and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach – in particular, those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption; • the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects is no longer likely to materialise; and • it would involve disproportionate effort – in such a case, there shall instead be a public communica - tion or similar measure whereby the data subjects are informed in an equally effective manner. Lastly, the controller shall document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken. 1.7 Regulators Supervisory authorities have limited regulatory power, mainly through the adoption of guidelines and opin - ions interpreting legal provisions. However, superviso - ry authorities (in Italy, the GPDP) also have supervisory powers to monitor compliance with data protection legislation, and benefit from investigative powers that include, ex multis, the possibility of requesting infor - mation from data controllers and data processors or conducting on-site checks and inspections. In this context, the supervisory authority may request access to the documentation adopted (privacy policy, consents, internal policies and procedures, records of processing activities, etc) and to systems and data - bases. The GPDP’s inspections may be triggered by the authority itself (based on an inspection plan adopted and published every six months, or following notification of a personal data breach) or by data sub - jects or other third parties (in the case of complaints or reports). Any decisions that are eventually adopted are published. Data protection legislation may also be applied by the courts in the case of appeals lodged by individu -
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