With
Decision No. 17 of 23 January 2020 and in imposing a sanction on an Italian
University for not having properly protected the confidentiality of the
identification data of two persons – the whistleblowers –, who had reported
possible unlawful behaviours, the Italian Data Protection Authority has laid
stress on the fact that an obligation weighs on the Employer, namely, the
“Controller” (pursuant to Article 4 of Regulation EU 2016/679, hereinafter, the
“GDPR”) to implement technical and organisational measures fit to ensure the
protection of the personal data processed (cf.
Newsletter of the Italian Data Protection Authority No. 462 of 18 February
2020).
In particular, at the time of the facts and in
aligning itself with the obligations to properly protect the employee that
reports unlawful behaviours within the working environment (the so-called “whistleblowing”
introduced in the Italian legal system with Legislative Decree No. 165 of 30
March 2001), the University had chosen to use a technological solution. In this
case, in order to ensure the protection in the capture and management of all
reports of offences, the University had availed itself to the use of a software
platform supplied by a third party outside the University’s organisation.
In
changing and concomitantly updating the software platform, there was the
so-called overwriting of access credentials leading to an exposure of the
personal data of the two whistleblowers on some browsers accessible and
viewable by whomever searched on the Internet.
As
a result of the above, the University served notice on the Italian Data
Protection Authority as to the so-called data breach, with which the University
reported the spread of the common personal data of the two whistleblowers on
the public web, to the extent that they could potentially be consulted by anyone.
The
investigation carried out by the Italian Data Protection Authority has found
that the University had not adopted proper technical and organisational
measures aimed at ensuring “the security and confidentiality needs typical
of data management within whistleblowing procedures”; on the other hand,
the University failed to define a correct procedure for controlling accesses,
which should have limited data processing to the authorised staff.
Indeed,
the University had limited itself to embrace the security measures chosen by
the software supplier. Nonetheless, the above-mentioned security measures were
neither suitable nor fit, since they failed to foresee measures such as coding
or the adoption of a safe communication protocol for information, thus allowing
the infringement of the confidentiality and of the integrity of the personal
data processed, as well as the respective incorrect keeping and accessibility.
In
particular, the Italian Data Protection Authority held that “As regards the
application at issue, in light of the nature, the scope and the aim of the
processing, as well as of the high risk for the rights and freedoms of the
whistleblowers, the solution adopted by the University can in no way be deemed
a technical measure fit to ensure the confidentiality and the integrity of the
data processed as well as the authenticity of the website used by the users
both as a whistleblowing channel (employees, students, etc.) and as a tool for
managing any whistleblowing (Head of Corruption Prevention and of Transparency,
i.e. RPCT and the respective collaborators, if any”.
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