Right to privacy and non-patrimonial damage in current Italian Supreme Court jurisprudence

Angelo Viglianisi Ferraro

Keywords

Right to privacy; Violation of human rights; Non-patrimonial damages; Gravity of violation; Seriousness of loss

Abstract

On 11th November 2008, four important decisions of the Italian Corte di Cassazione (United Sections) fixed a new and singular interpretation of Article 2059 of the Italian Civil Code (about “non-patrimonial damage”), by establishing principles that must be applied by all Italian courts.

According to the Supreme Court Judges, compensation of non pecuniary loss requires previous assessment of the elements of civil tort (conduct – damage – causation) and, in cases where the law does not specifically provide for its recovery, compensation can be allowed only where there is a grave violation of the constitutional rights of the person and the damage is serious.

The Third Section of the Court decided some months ago to apply the same rules in the matter of the right to privacy (although in this case there is a specific provision for the compensation of non-patrimonial damages).

The solution cannot be shared.

The “filters” introduced by the Supreme Court appear to be more appropriate for the evaluation of the “quantum” rather than the “an” debeatur.

The recent interpretation of Article 2059 and of many rules created to protect important fundamental rights (like privacy) ultimately takes the Italian Juridical System very far from the models and the guide-lines followed in Europe.