Court of Appeal in Milan: messages in a mailing list protected like private correspondence

The Court of Appeal in Milan, in its ruling No. 439/2016, confirmed the principle that e-mail messages exchanged among employees as part of a mailing list, constitute private correspondence and therefore fall into the category of protected communications of a personal nature. According to the Court, the personality of the communication “lies in the predetermination of the recipients, which the sender wishes to send their e-mail message to – those persons and not others”. The case in question concerns an action brought by an airline pilot sacked for misconduct for instigating colleagues to engage in trade-union activity contrary to the employer’s obligations. In support of the grounds for dismissal, the employers produced the emails exchanged between the person concerned and his colleagues, highlighting the damage caused by these actions. Nevertheless, the territorial Court, sticking to the position already taken in the past by the Italian Data Protection Authority stated that emails that circulate within mailing lists, just like paper-based correspondence, must be treated in the same way as correspondence that is closed and inviolable by third parties (Editor’s Note: in this case, the employer)” and, thus, falling under the protection of Article 15 of the Italian Constitution. In this way, the judges deemed the grounds given for the dismissal as unfounded, because it lacked any evidence that could legitimise the employer’s actions.