The Court of Milan was called to urgently decide on a delicate question regarding the persistence of rights beyond the life of the natural person. In particular, in the case decided by Judge Dr. Flamini, with a provision issued as an emergency on February 9, 2021, the parents of a boy who died tragically in a car accident, had asked that it be ordered to Apple Italia Srl ( as a company belonging to the Apple group) to allow them to retrieve their son’s personal data that had been synchronized to Apple’s iCloud system via his iPhone X phone.
In particular, the parents highlighted how:
– said telephone had been completely destroyed during the car accident and this had made it impossible to access the data contained therein;
– it was in their interest to retrieve the photographs and videos recorded by their son to try
to partially fill the sense of emptiness and pain that gripped them: in this regard, the parents intended to recover them to carry out a project dedicated to his memory;
– Apple had denied them access to the data in the iCloud account, demanding in this regard an order from the Court which, moreover, had requirements completely unrelated to our legal system;
– Apple had informed them that their system, after a certain period of inactivity of the account, would have automatically destroyed all the data there.
Given that the Court of Milan, in accepting the claims of the applicants parents against Apple Italia Srl (which remained in default), with a clear and well-motivated decision, thus argued.
First of all, he observed how with the recent reform of the Privacy Code of Legislative Decree 10.08.2018, n. 101, and introduced art. 2-terdecies, a specific provision concerning the rights of deceased persons, given the faculty left in this regard to the individual States by Recital 27 of the Gdpr. By virtue of this reform in our country the “personal data of deceased persons can be exercised by those who have an interest of their own, or act to protect the person concerned, as his agent, or for family reasons worthy of protection”.
However, this possibility is not without limits. In fact, in paragraph 2 it is envisaged that the exercise of these rights is not allowed, other than in the cases provided for by law, “when, limited to the direct offer of information society services, the interested party has expressly forbidden it with written declaration presented to the data controller or to the latter communicated “. Furthermore, in paragraph 3, it is foreseen how this manifestation of will must be unequivocal, free and informed and is always subject to revocation or modification by the interested party.
Given this regulatory framework, the Court observes that the legislator has:
a) recognized the possibility of persistence of rights (such as the right of access, rectification, limitation of treatment, opposition, cancellation, portability of data) beyond the life of the natural person;
b) intended to protect the rights to dignity and self-determination of the person, not only in his physical dimension, but also in the sphere of his personal data, which express and realize his identity, enhancing the autonomy of the individual, who can choose whether to leave the heirs and legitimate survivors the right to access, or not, their personal data.
In the positive solution of the case, the Court also observed, first of all, that there were family reasons worthy of protection as required by art. 2-terdecies, paragraph 1, Privacy Code: it is undeniable in fact that the desire to recover the images of the child’s last period of life to overcome the pain and to want to carry out a project to keep his memory alive through the collection of the young person’s recipes chef, is an interest worthy of protection. Secondly, the Court verified that the correspondence between the parents and Apple never revealed the existence of any written declaration of the boy prohibiting the use of his data, a declaration that could have legitimized Apple’s refusal to log into your account.
Furthermore, the Court censured Apple’s requests to make access to the account subject to a whole series of requirements unrelated to our legal system as illegitimate, such as proof of being the administrator of the deceased’s estate or one of his (unspecified ) agent. Lastly, the need to act urgently in order to avoid the occurrence of a serious and irreparable injury was also positively assessed, given that Apple had communicated to parents that by virtue of their policy after an (unspecified) period of inactivity of the account, all the data present there would have been automatically destroyed and would therefore be lost forever.
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