Ministry of Education
Rome, November 30, 2007 Directive No.
104
MINISTER
WHEREAS the right to protection of personal data has
specific forms of protection because of the validity of specific provisions
legislation (most recently, as contained in "Code
protection of personal data," approved by d . lgs.
30 June 2003 No. 196) to ensure that the processing of personal data
be respect for human rights and fundamental freedoms
, and dignity, with particular
reference to privacy and personal identity;
WHEREAS the Ministry of Education aims to promote among students
the widest knowledge of the rights
constitutional significance, which is the right to protection of personal data,
in the belief that ' education for a culture of legality
must be done by actions to promote awareness and compliance with the laws
;
question and the students the right to privacy is enshrined in Article also explicitly
. 2, paragraph 2, of Presidential Decree No. 1998 June 24
249 (called "Charter of the female students and students"), called
art. 96, paragraph 2 of this Code;
WHEREAS within school communities, especially among young
, it is very common to use "mobile phones" or other electronic devices
;
finding that the rules of the sanctions applicable in respect of disciplinary
students for violating the ban on the use of
mobile phones or other electronic devices during the
teaching activities is left to the autonomous power
-regulatory organization of educational institutions in accordance with
clarified with the 'act of the Minister's address
Education prot. No 30/DIP/segr.
of 15 March 2007 concerning "guidelines and instructions in
on the use of mobile phones and other electronic devices during
teaching activities, impose disciplinary sanctions
, duty to supervise and co-responsibility of parents and
of teachers;
WHEREAS
regulating the use of such equipment by the teaching staff is governed
well as organizational arrangements provided
the independent regulatory institution, by specific rules of conduct and disciplinary
, dictated by the state workers and the Negotiable
in line with the need to properly fulfill the duties
professional
WHEREAS, irrespective of the above profiles organizzativisanzionatori
concerned with school and connected to a
misuse of mobile phones or other electronic devices designed to disrupt the
proper and peaceful conduct of
educational activities, there is the issue whether in a more general
under existing order, to be configurable
cases in contravention of the Data Protection
personal
WHEREAS institutions School has become widespread and the social significance
phenomenon of using mobile phones or other electronic devices
, by students or other
players, to acquire, or rather "steal" data formats
audio, video or voice recording or reproducing image archive
or digital photographs related to people, students, teachers
, or other entities that operate within the school community
;
WHEREAS, these data are considered "personal information" within the meaning of Article
. 4, paragraph 1, letter b) of the said Code;
whereas the acquisition of the data mentioned above, even though they are inside
educational institutions, in many cases, it is
attributable to teaching activities, training or learning
own school
WHEREAS, the above data are frequently disseminated not only among
belonging to the same school community, but sometimes, even to an audience
"indistinct"
of users through the use of telematic systems and the Internet;
WHEREAS, we are witnessing the growing popularity of the internet portals and web sites
"dedicated" intended to make public archive
or records relating to incidents in institutions
school or during periods of
educational or teaching activities, in some cases, also for purposes
disparaging personal dignity and social
students, including minors, and faculty;
CONSIDERING that the personal data mentioned above are in some cases
"sensitive"
WHEREAS, in light of the above are necessary
further explanatory guidance, in addition to those already provided with the
a general measure of the Guarantor for the protection of personal data of 20
January 2005
with the previous decision of March 12, 2003, with particular reference to cases
concrete that are in the form of schools
Italian;
CONSIDERING the need to provide appropriate explanations explanatory of
existing legislation in order to promote full respect for the discipline
data protection and to inform individuals of the school community about the consequences
sanctions that may arise against those infringing the
right to protection of personal data;
CONSIDERING the opportunity to engage in information activities in schools
in order to prevent the phenomenon of violation of the right to the protection of fundamental
personal data, derived
constitutional by the students
and other subjects of the school community;
Considering the Code regarding the protection of personal data (Legislative Decree no.
30 June 2003, n. 196);
GIVEN the Decree of the Minister of Education
7 December 2006, n . 305 "Regulations for the identification of sensitive and judicial data
treaties and related transactions
by the Ministry of Education, in implementation of Articles.
20 and 21 of Legislative Decree no. June 30, 2003, No 196, entitled "Code
protection of personal data" (published in the Official Gazette No 11 of
January 15, 2007);
Seen the Law No 15 March 1999 59;
VISA DPR 8 March 1999 No 275;
the VISA Presidential Decree No 24 June 1998 249 "Statute of female students and students
" VISTA
the Directive of the Minister of Education prot. No
5843/A3 of October 16, 2006, stating: "Guidelines on
democratic citizenship and legality";
VISTA Directive of the Minister of Education, prot. No
1455 of November 10, 2006, entitled "Information and guidelines on student participation
" VISTA
the Directive of the Minister of Education, prot. No 16
February 5, 2007, on "general guidelines and actions at national level
for the prevention and combating bullying" the act
VISA of the minister of Education, prot. No
30/dip./segr. March 15, 2007, on "guidelines and
information on the use of mobile phones and other electronic devices during the
teaching,
imposition of disciplinary sanctions, duty to supervise and co-responsibility of parents and teachers
"Having regard to Article
. 4, paragraph 1, letter A, Legislative Decree 30 March 2001, No 165;
Following consultation with the Authority for the protection of personal data in
meeting on November 29, 2007, pursuant to art. 154, paragraph 4, of this Code
;
ADOPTS
this directive laying down guidelines and clarification of interpretation and application in order to
regulations designed to protect the privacy
with particular reference to the use of cell phones or other electronic devices in school communities
the aim of acquiring and / or distribute any images, videos or voice recordings.
1. Use of mobile phones in order to acquire personal information
images, sounds and movies taken in school communities through mobile phones or other electronic devices
and then sent via MMS or otherwise disclosed
in other forms, including the publication on website may contain personal information
relating to one or more identified or identifiable
and in particular to individuals. It follows that the collection, storage, use and disclosure to third parties
of these data, within the meaning of the legislation in force, a
"processing" of personal data. These data, however, may also relate to the sphere of
health, sex life or other sensitive information for which there are special
safeguards to protect those concerned.
seems opportune to recall that for "sensitive data" means "the
personal data revealing racial or ethnic, religious, philosophical or other beliefs,
political opinions, membership parties, trade unions, associations or organizations of
religious, philosophical, political or trade union, as well as personal data disclosing health and sex life
"(cf. art. 4, paragraph 1, letter C of the Privacy Code ).
discipline for the protection of personal data, however, does not apply when the data collected
not include information related to persons identified or identifiable, also indirectly
.
circumstances, are obliged to clarify the areas of operation of existing legislation
pointing out that you have to distinguish two different legal situations depending
that the acquisition of personal data question is directed to a subsequent disclosure to third parties or
occurs only for personal use.
2. Specific precautions general
Who uses the collected personal data and send (pictures, videos, voice recordings, ...)
whether to do it for personal purposes or to spread them even
then, must be respected in all cases, the specific obligations to protect third parties from
common rules in civil and criminal, even if the use of personal data for purposes
only.
The collection, reporting and possible dissemination of images and sounds must have
shall take place while respecting the rights and freedoms key interested parties,
using the image of others as and when permitted by the law.
You will then need to pay attention, in particular, the protection provided by art. 10
Civil Code ("Abuse of other people").
"Article 10 Abuse of other people
If the image of a person or parent, spouse or child has been exposed or
published out of cases in which the exhibition or publication is permitted by law, or
with injury to the dignity or reputation of that person or those of joint
the court, on application, may order winding up abuse, except
damages. "
Equal attention should be paid to the guarantees provided for the display, reproduction and
the marketing of non-consensual picture of a person (art. 96 law
April 22, 1941, No. 633 on copyright), the which require the consent of the person portrayed in
unless the image reproduction is justified "by the reputation or public office
covered by the necessities of justice or police, for scientific, educational or cultural
or when playback is connected to facts, events, ceremonies or public interest
held in public "and prohibit, however, exposure or marketing
which causes "injury to the honor, reputation or even the propriety of the person portrayed
" (Article 97, paragraph 1, of Law No. 633 of April 22, 1941).
addition, the duty to refrain from violating these prerogatives of
interested in applying the principle of "neminem laedere" (art. 2043 Civil Code) does not exhaust the
legal obligations of the person using such personal information (images, movies,
voice recordings, ...), having the same respect other prohibitions
criminal penalties which may include in particular:
a) the unwarranted collection, disclosure and dissemination of images
relating to privacy that are held in homes of others or other private dwellings (Penal Code Article 615-bis);
b) the possible crime of abuse, in particular the case of messages sent to offend the honor or
the dignity of the recipient (art. 594 Criminal Code);
c) obscene publications (art. 528 Criminal Code);
d) the protection of minors with regard to pornographic material (art. 600-ter of the Penal Code, Law of 3 August
1998, No. 269).
Consequently, those who use personal data (pictures, videos, voice recordings, ...)
collected with their mobile phones or other devices, must consider all these circumstances and be careful that
their behavior does not adversely affect the rights of third parties, such
avoid taking people's attitudes or situations that could
offending that person or to refrain from publicly available images, even occasionally, to a large number of subjects
without the person photographed or filmed is aware and can take action to protect their privacy
.
3. Disclosure
As you know, the modern mobile phones, as well as other electronic devices, allowing
easily, and at any time, users can take pictures or record sound or video clips,
attributable to individuals. These tools also allow you to send other people
photographs or recordings mentioned above, for example through the use of "MMS",
well as offering the possibility of using these data for publication on websites.
face of these opportunities provided by the use of new technologies should be clarified that
the dissemination of personal data of this kind, under the current legislation,
can not be based on the free will of those who had acquired them, as each
person is the holder of the right to protection of personal data. As a result, the delivery or communication in a systematic
of personal data, such as those described above, especially if a plurality
target may be effected only after the person concerned has been duly informed in order to
later how to use the data, with particular reference
possibility that the data are released and / or systematically, and has expressed its consent
( under Articles. 13 and 23 of the said Code). In the case of sensitive data
consent must be expressed in writing, provided, however, the
restrictions on disclosure of health data.
These general rules apply equally in school communities in
which has a special cultural significance to young people the need to
ensure knowledge and compliance with the rules protecting the rights of individuals.
This means that students, teachers or others in the school community who wish
take photographs or make audio or video within the institutions
school with your cell phone or other devices, and subsequently use, disclose
, send personal data collected will be forced to engage in two tasks:
A - you must inform the data subject of:
- the purposes and methods of treatment that will be made in respect of such
data
- entitlements it enjoys under Article. 7 of the Code, such as, for example, the right to cancel or
processing of personal data in anonymous form;
- the identification of the person using the phone or other device to collect data
.
B - must acquire the consent of the person concerned. In the event that the processing relates to data
sensitive type, you must obtain the written consent, subject to the above
restrictions on disclosure of health data.
The non-compliance with prior information to the interested
involves the payment of an administrative penalty ranging from a minimum of € 3,000 up to a maximum of 18,000
€ or, in the case of sensitive data or treatments
situations involving injury, even with the expense of serious damages, the penalty ranges from a minimum of 5,000 €
up to a maximum of 30,000 € (see art. 161, Code). 3.1 Use personal
In the event that, conversely, movies, pictures or sounds on other people, whether acquired through
phone for "purely personal" do not operate any such
disclosure requirements and acquisition of consent in the processing of personal data
. This, however, provided that the information gathered "is not intended for systematic communication or
dissemination ".
The reporting requirements and acquisition of consent does not operate such as
clarified by the Guarantor for the protection of personal data in the case of taking a picture and send it
occasional (eg, friends or families): the person who performs the snaps or
shooting with your mobile phone only for reasons of purely personal nature
(cultural, recreational or otherwise) and the images are sent
with a limited scope of knowability.
The obligations in question are, on the contrary, apply in other cases where, although for purposes
simply cultural or informational, the image has been collected to be distributed on the Internet or
systematically communicated to third parties.
between these two hypotheses, as explained more by the Guarantor, there may be situations, however
-limits to which deserve particular attention and which should be examined case by case
.
For example, it is noted that the personal data in question (pictures, videos, voice recordings
, ...) can be sent, for example via MMS, with one
direct communication to others, however, a very large number of recipients. Here you can
determine the practical conditions in which the image is done with dispatch despite occasional
features to create a chain of communication data.
In any case, the fact remains that even the use of images, movies or voice recordings for
purely personal, however, must comply with the obligation to keep information secure
collected, bearing in mind that respect for human rights, fundamental freedoms and
dignity of third parties is implied in these treatments and that if it causes any damage to third parties
also not one who uses capital improperly
images or other personal data collected by mobile phone or similar electronic device,
must compensate him if does not prove that he took all reasonable steps to avoid it.
4. Regulations and school disciplinary
Students who do not comply with the requirements mentioned above, the prior statement in which they foresee
cases, commit a violation, punishable by a penalty,
application of which the Ombudsman has jurisdiction (Articles 161 and 166 of the Code).
In any case, students must behave properly and respect vis-à-vis the
headteacher, school staff and their companions,
with reference to which the regulations of individual schools identify the conduct constituting misconduct disciplinary
(Articles 3 and 4, 24 June 1998 Presidential Decree No
249 - "Regulations on the status of students and secondary school students
).
It follows that such conduct, related to improper handling of personal data
acquired through mobile phones or other electronic devices, shall be punished with appropriate severity and severity
under the Regulations of individual schools.
Schools are therefore required to bring their regulations in accordance with the clarifications described above
identified as part of its autonomy, the most appropriate sanctions to impose
against students who violate the right to protection of personal data within
school communities.
Finally, it must draw attention to the possibility of the schools
autonomous in its regulations, to inhibit, in whole or in part, or to refer appropriately
certain precautions, the use of videophones and multimedia within the schools themselves
and in classrooms.
The school is in fact empowered to enact special provisions
internal organizational institution to regulate the use of so-called MMS
by students, for example prohibiting the use of cameras, camcorders or recorders
voice, inserted into mobile phones or other electronic devices,
in the absence of explicit consent given by the individual.
Violation of these rules in the Regulations of the Institute can therefore constitute a disciplinary offense
, with the consequent application of the relevant penalty
identified by the school.
Given the vast impact on society that has taken the phenomenon of the use of mobile phones
for the acquisition and processing of personal data within the
Italian schools, is particularly desirable for the adoption of the above measures together with all
'identification of spaces for reflection and study in order to issues covered by this
Directive in order to promote awareness among young people the importance of the right
the protection of personal data into the current view of spreading the culture of legality
.
The Ministry of Education, in cooperation with the Authority for the Protection of Personal Information
, promote information campaigns and training programs for school leaders
to spread in schools, the wider knowledge of the regulations concerning the exercise of the right
the protection of personal data and the safeguards.
MINISTER
Giuseppe Fioroni
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