In designing email marketing campaigns or for the sending of newsletters is often employed the online collection of public addresses. But are these addresses really public? In this, is the difference between a legal action and an illegal one.
The law 675/96 on Privacy has left some doubt as to the lawfulness or otherwise of sending alerts to e-mail addresses present on the Web. In Internet, infact, are disposable million of addresses of electronic mail: on personal websites, in the business pages, in the forums, in the newsgroups. Many enterprises, experts and simple owner of website make frequent use of these "public" addresses to promote and make known their own website or their own activity. But are they right? The answera is surely NO.
The doubts of interpretation
Many actors used those "pulblic" addresses only without knowing the law on Privacy. The law 675/96 regulates also the sending on email of any type. Meanwhile, the difference between email with commercial value (advertising) or informative is ininfluent for the lawfulness. Yhe only difference regards the possibility riguarda the possible sanctions (heavier for email with commercial value).
Other actors, while knowing the law 675/96 are sure to be right because they misinterpret a point (C one) of the article 12. This article regard cases of exclusion of consent and among these are cited data “coming from public registers, lists, records or documents that are publicly”. Naturally, the exclusion of consent applies to the first sending: if each user asks not to receive no more communications, his/her will must be respect. But the rule applies only for public addresses. Must those present online should be considered as such?
The solution of the del Guarantor
The answer s absolutely negative. To clear it, several times, is the Guarantor of privacy in person. In various decisions, the guarantor said clearly that the law
“doesn't referr to any personal data that is effectively available from a plurality of persons, but to the only personal data that besides being derived from the registers, lists, records or documents “public” (in particular such as formed or held by one or more public), are subject to a legal regime of full understanding by anyone."
The key legal concept, relied by the Guarantor in support of this thesis is that for which "the knowledge of addresses ... can't be essere divorced from the purpose for which it exists”. In essence, a user publics his/her email address on a website, in a newsgroup or in a forum for some goals and this address can't be used for other finalities.
So, is to consider illegal the sending of email to addresses published on the Web whether the collection of this data takes place, as it were, manually, one by one, whether it's assigned to automatic tools, such as specific softwares that control the web to collect addresses, like spiders.
The spamming, unfortunately, represents even damage to the Web and to the development of e-commerce, as demonstrated by the last data. Everyone must start to have a different consciousness of this phenomenon, even when is believed not to implement it.