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The Italian “Do-not-call” – 2

Let’s resume our analysis of the reform of the Italian “Do-not-call” Register (Registro Pubblico delle Opposizioni), completed with the publication in the Official Gazette of the implementing regulation (Presidential Decree no. 26/2022), replacing the previous Presidential Decree no. 178/2010. In the meantime, the Ministry of Economic Development has launched the public consultation of the main operators, from 5 of April to 6 of May 2022, in order to “share the main functionalities available to operators and receive any comments, as well as to collect data useful for the creation of the new Do-not-call Register”.

By the 27 of July 2022, the Ministry is expected to issue the technical regulation and, with this final act, the reform will be fully operational.

The previous bulletin is dated April 7, 2022.

The new Italian do-not-call Register
Main aspects of the reform of the Italian Do-not-call Register.

Consultation of the Register

The operator is obliged to carry out periodical consultations of the Do-not-call Register at least monthly and, in any event, before the launch of an advertising campaign (Article 1, paragraph 12, Law No. 5/2018).

Also in this case, reading the provision from an operational perspective shows that the obligation to carry out periodic consultations is regardless of the operator’s willingness to carry out a specific advertising campaign or survey.

Considering the burden expected for this activity, the legislator has taken charge of making the periodic consultation less costly by giving mandate to the Ministry of Economic Development to identify criteria for the updating of tariffs and the adoption of facilitated tariff models also by virtue of the adoption of advanced technologies (Article 1, paragraph 12).

Withdrawal, even partial, of the opposition

Another important innovation concerns the right of the interested party to “withdraw, also for defined periods of time, his/her opposition to one or more” “operators”, i.e. those controllers who use phone numbers for the purposes of direct marketing, opinion polls or commercial communications (art. 1, paragraph 4). This implicates that the comparison of the data list of the operator with the database of the Do-not-call Register is not limited to verifying the presence of the user/s in the Register for the purpose of their exclusion from subsequent contact, but it also considers whether, for the user that is in the Register and that one intends to contact, there is a specific withdrawal that legitimates the contact.

Therefore, when fully operational, the following scenarios may occur:

  1. the telephone user is not registered in the Register but is listed in the public telephone directory,
    so it can be contacted unless the controller operator has received a specific opposition from the interested party pursuant to art. 21.2 of the GDPR
  2. the telephone user is not registered in the Register and is not listed in the public telephone directory, so it can be contacted only if the controller operator has received specific consent from the interested party pursuant to art. 130 of the Privacy Code
  3. the telephone user is registered in the Register, without any withdrawal of the opposition, in which case the owner operator is obliged to delete it from the list of contacts subject to the advertising campaign that will be carried out (except for the ongoing contractual relations)
  4. the telephone user is registered in the Register but with specific withdrawal of the opposition
    in favor of the operator who consults the Do-not-call Register in order to update his list of contacts; in this case, if the time frame of the withdrawal allows it, the operator will still be able to contact the subject to whom the user refers.