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The widespread availability of Internet raises increasingly complex issues in terms of information regulation. In fact, the amount of circulating information and the possibilities to track them is raising growing concerns, related both to business as well as personal freedoms, that were not even imaginable in the early Nineties, when the first legal provisions related to the protection of personal data were adopted by the European Union (hereinafter EU).  

In May 2014, by “leveraging” a case that occurred within one of the EU Member States (namely, Spain, the main parties being a Spanish citizen, a Spanish media group, and the Google group), the EU Court of Justice (“EUCJ”) wrote a new page on the protection of the “digital rights” of individuals when operating in the internet, by delivering a decision in contrast with a concept of net neutrality behind which the web companies can freely operate.1 Purpose of this case comment is to read together, and eventually understand, the main features of a sea-changing EU jurisprudence. In order to do this, we will try, first, to introduce the relevant EU legal framework, moving then to a more detailed analysis of the case law; some conclusive (as well as critical) remarks will also be provided. 

Eclipsing the Web

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Filing a class action is subject to some limitations. The first limitation is that only consumers have standing. Any consumer may file a class action personally, through a consumers’ association or a committee of consumers established expressly to file that class action. In practice, almost all class actions have so far been filed through and financed by consumers’ associations. Class actions are not cost effective for consumers.  

A notable exception is the De Zordo vs. Quadrifoglio class action. In this case, an individual consumer filed a class action personally against a private company charged with cleaning the streets of Florence. The plaintiff complained that the defendant breached its contract with the municipality (and therefore with the citizens of Florence at large) on he occasion of an exceptional and unprecedented snowfall. However, Mrs. De Zordo was not a common consumer. She was a member of the city council, who was obviously more interested in the political return of her judicial initiative than in recovering non-pecuniary damages caused by the snowfall. 

The second limitation to the availability of class actions is that they may be filed only for certain infringements: infringements of contractual rights, product liability, unfair commercial practices, and infringements of antitrust law. Recently, class actions have also been made available in cases of liability of providers of services. For all other infringements, class actions are not available. For example, class actions may not be filed in case of environmental liability. It is disputed as to what extent class actions may be filed in case of fraud on financial markets.  

Class Actions

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Il credente sa che l’uomo ha avuto accesso alle cose invisibili fin dal momento della sua apparizione sulla terra. La creazione fu accompagnata da una rivelazione primaria, senza la quale il primo uomo non avrebbe saputo come orientarsi. 

Per l’antropologo, il primo uomo è homo habilis, privo dei centri di Broca e di Wernicke, dotato di una faringe e una laringe che non gli permettevano di produrre i suoni che oggi costituiscono il nostro strumento fonetico. 

D’altronde, la teologia non ci dice chi fosse, per essa, il primo uomo. Essa non è obbligata a rivolgersi per chiarimenti all’antropologo, che parla di homo quando parla di un fabbricante di utensili. La vicenda dell’uomo teologico potrebbe essere più breve di quella dell’uomo zoologico, e incominciare con l’uomo che comunica con strumenti vocali evoluti, o addirittura che l’uomo che pensa con strumenti logico-concettuali avanzati (nemmeno Teilhard de Chardin ha trattato il tema). 

In ogni caso, da una certa data l’uomo ha lasciato segni dell’accesso, da lui praticato, in un mondo nascosto ai suoi sensi. 

Qui non tratterò di quell’accesso, ingannevole, che si opera nel sogno, allorché ci appaiono i vivi ed i morti, allorché si compiono gli eventi (cui, quando svegli, non abbiamo mai assistito) che più temiamo e che più desideriamo. 

Da 300.000 anni l’uomo ha una qualche cura dei suoi morti. È questo un segno? 

Cosa più rilevante, da 35.000 anni l’uomo pratica arti figurative. Dal -35.000 al       -10.000 l’uomo di Cro-Magnon ha disseminato in Europa, soprattutto in Francia e Spagna, pitture parietali di eccezionale importanza e bellezza (grotte di Lascaux, di Pech Merle, di Niaux, dei Trois Frères, del Mas d’Azil, di Altamira ecc.), nonché sculture significative. Pittura e graffiti importantissimi sono presenti anche nel Sahara e altrove. 

Il Soprannaturale E Il Diritto

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Believers assume that humanity could access to invisible since his appearance on earth: a primary Revelation must have accompanied the Creation in order, for the man, to know how to behave. 

Anthropologists, on the other hand, believe that the first man is the homo habilis who, deprived of both Broca’s and Wernicke’s cerebral areas, had a larynx and pharynx that did not permit him to produce those sounds that constitute our current phonetic system. 

Theology, on its part, does not tell us who the first man was: theologians do not need to ask for clarifications to anthropologists, which define the homo as utensil manufacturer. Man as described by theologians might have had a more recent appearance than the man in zoological terms, and his story may begin when men started to communicate through an advanced phonetic system, or even when man initiated to use complex logic-and-conceptual categories (this is a topic that was not addressed even by Teilhard de Chardin). 

It is however undoubted that, starting from a specific moment, man showed signals of access to a world that was hidden to his senses. I will not deal, on this occasion, with the issue of the deceptive access that occurs during dreams, when the living and the dead appear to us and when it is possible for those events, that we fear or desire the most – and which we never witnessed when awake – to happen. 

For 300.000 years, men have taken care of their dead. Is that a sign? Most importantly, men have performed visual arts for 35.000 years at least: from 35.000 to 10.000 B.C. Cro-Magnons disseminated in Europe – in particular, France and Spain – parietal paintings of exceptional importance and beauty (Lascaux Caves, Pech Merle, Niaux, Trois Frères, Mas d’Azil, Altamira, etc.) and significant sculptures. Important paintings and graffiti may be also found in the Sahara desert, and elsewhere.

Supernatural and the Law

Issue 23

ARTICLES

Supernatural and the Law……………………………………………………..Rodolfo Sacco

Il Soprannaturale E Il Diritto………………………………………………….Rodolfo Sacco

Class Actions in Italy: A Farewell to America.……………………………Giorgio Afferni

Eclipsing the Web: Online Data Protection and Liability of Search Engines in the Google Spain Case…………………………………………………………………………………….Antonio Davola

……………………………………………………………………………………………Elisa Stracqualursi

International Taxation: The Issue of Tax Evasion by Corporations………………………………………………………………………….Valeria Camboni Miller

A Journey Through Italy’s Overcrowded Prisons………………Giancarlo P. Pezzuti

CASE COMMENTS

Utility Air Regulatory Group v. Environmental Protection Agency…………………………………………………………………………………..Heather DeLaurie

McCutcheon v. Federal Election Commission……………………….Dennis Polio

Mission:
The Digest is the law journal of the National Italian American Bar Association (NIABA).   The Digest is a professional journal publishing articles of general interest to the profession with a special focus on Roman Law, Civil Law, Italian Law, and all areas of property law (from real property to intellectual property, cultural property, land use, and the law of historic preservation).

SUBMISSIONS: The journal publishes articles, essays, commentary, and book reviews.  You may submit a paper for us to consider by e-mailing it as a Word attachment and sending it to:  digest@law.syr.edu.  Papers should be submitted in English.

The Digest is published as part of a special partnership between NIABA and the Syracuse University College of Law. Students at the College serve on an Editorial Board that is responsible for editing and producing The Digest.

Membership on The Digest is open to all students who have an interest in Italian American heritage and culture, and who want an excellent opportunity to learn from a law review experience. All members obtain a handbook on Italian culture and heritage, and each member is recognized by the College of Law for his or her contribution as an editor.

Digest Editorial Board:
The Digest is operated as a student run law review within the College of Law, but it has some unique features.   The Digest has a faculty member in charge of its operations as Editor-in-Chief who is also on the national Board of Directors for NIABA.  Day to day duties of running the journal are turned over to student Managing Editors and their staff.

NIABA:
The NIABA is a nonprofit, nonpartisan corporation, founded in 1983 to advance the interests of the Italian American legal community and to improve the administration of justice. NIABA members include judges, law professors, and law students, as well as attorneys in both private and public sectors. A Board of Directors elected by members governs the Association. Local chapters of NIABA are located in cities throughout the U.S. Local chapters go by the name NIABA or by affiliated names including The Justinians and The Columbian Lawyers.

Membership:
Each Spring The Digest invites interested students to join the Editorial Board. To be considered for an associate editor position, students must hand in an appellate brief or memorial and complete graded exercises. Space is limited. The Managing Editor and the Associate Managing Editor are selected directly by the Editor-in-Cheif.  The Managing positions are very competitive and demanding. Each year, associate editors write a case comment which may be selected for publication in the digest. While membership is open to all students, students of Italian American heritage are strongly encouraged to apply. Each year students from a diverse and varied background join together to make this journal a success. The Digest benefits from the devoted effort of many students including many who are not Italian American.

A judge in Tuscany on Wednesday accepted a plea agreement from Costa Crociere, a unit of Carnival Corp., which required the company to pay a fine of $1.31 million for a deadly cruise ship wreck in January 2012. The plea agreement will settle any criminal charges stemming from the accident that occurred off the coast of the Tuscan island of Giglio that resulted in the deaths of 32 people.

The cruise ship captained by Francesco Schettino, carrying over 4,000 passengers and crew, ran into a reef on January 13, 2012, which caused the ship to take on water and overturn. The Concordia is still in the water awaiting recovery. The settlement does not shield the Concordia from civil suits. Schettino remains accused on manslaughter, and could see a sentence of up to 20 years in prison. Schettino is not the only member of the ship’s crew that still faces legal repercussions however, as five other members also face indictment on criminal charges.

John Arthur Eaves, Jr., an American lawyer representing 150 passengers and crew members, blames the disaster mostly on the shoulders of Carnival and Costa, and termed the plea agreement a “tragedy.” Eaves is striving for $5 million in compensation for each of his clients. Similarly, the Italian consumer group Codacons described the monetary settlement as a “slap to the survivors and most of all to the relatives of the victims of the shipwreck.” Passengers who were onboard that day contend that poor training on the part of the ship’s staff resulted in a chaotic evacuation.

As to the salvage of the Concordia, the ship is planned to be corrected in early August of this year and then floated off the reef in the fall.

For more information:

http://www.latimes.com/news/world/worldnow/la-fg-wn-costa-concordia-fine-20130410,0,2757099.story

http://www.examiner.com/article/cruise-ship-fines-set-concordia-wreck-brings-1-3m-fine-from-judge

http://www.today.com/travel/costa-cruises-accepts-1-3-million-fine-over-concordia-disaster-1C9291241

Amanda Knox, a United States citizen attending college in Italy, was tried and convicted for the 2007 murder of her British roommate, Meredith Kercher.  After serving four years of her 26 year sentence, Knox was acquitted in 2011.  Since her release, Knox has been attending college in Oregon.  Last week Italy’s highest criminal court overturned the acquittal and ordered a retrial.

Italy’s criminal justice system that is based in a civil law tradition seems very foreign to Americans who are accustomed to common law.  Unlike the US justice system, in Italy prosecutors can appeal a case when they receive a poor verdict, which makes it routine for criminal cases to be appealed.  In the United States only five percent of verdicts are overturned on appeal.  Conversely, in Italy this occurs in 95% of appeals.

But what is most startling about Knox’s upcoming post-acquittal retrial is that it clashes with the American constitutional prohibition of double jeopardy.  While American courts do not allow a person to be tried twice on the same allegations, Italian law does not have such a prohibition.  Because of this, many people are wondering whether the United States will even be willing to extradite Knox if the Italian courts make such a demand.

While Knox can be tried in absentia, if the court finds that she is guilty Italy will likely demand her extradition.  The United States has an extradition treaty with Italy, and it regularly delivers people convicted of crimes by Italian courts.  If Italy makes such a demand, a United States judge would be required to ratify Knox’s guilt using a “probable cause” standard before she could be extradited.  And indeed, the aforementioned treaty forbids extradition where the defendant was previously acquitted.  However, many legal experts think that Knox would be extradited in this situation because Italy would likely argue that Knox’s acquittal was not final within the context of the Italian justice system.  It will be interesting to see how the US courts reconcile the constitutional issues of this case with the foreign treaty.

For more information:

 http://www.bloomberg.com/news/2013-03-26/italy-extradition-of-amanda-knox-seen-as-difficult.html

http://www.cnn.com/2013/03/26/world/europe/italy-amanda-knox-case/index.html

http://worldnews.nbcnews.com/_news/2013/03/26/17468473-italy-court-amanda-knox-to-be-retried-for-meredith-kercher-murder?lite

http://tv.msnbc.com/2013/03/30/can-amanda-knox-be-forced-back-to-italy/

President Giorgio Napolitano turned to an outside group of advisors, coined by the media as the ’10 wise men,’ to ensure the government’s political efficacy after elections last February left no solid majority of any party. Specifically, the advisors are being asked to formulate precise proposals and issues to find common ground among the fractured parties to form a governing coalition.

Tensions are high after the attempts from the center-left party to find common ground fell apart. Italy is currently in the throes of an unemployment crisis, especially among Italian youth. While the Italian markets have been relatively calm, economic stability demands a functioning government. With Napolitano’s term ending May 15, this puts even more pressure on the President and his advisors, as the three fractured parties argue over apparently irreconcilable differences.

The likely outcomes from Napolitano’s advisors will be a continuance of former Prime Minister Mario Monti’s austerity measures and a call for reform laws to protect the country against the political deadlock it finds itself in.  The moniker given to Napolitano’s ’10 wise men’ shows the predicament and the impasse at issue. Only the most brilliant of strategists could find common ground in this situation in the month and half left on Napolitano’s term. With such dire circumstances in the Italian government, the country should hope the wise men can also walk a tight rope.

For more information:

http://www.nytimes.com/2013/03/31/world/europe/italian-president-may-step-down-amid-deadlock.html?ref=italy&_r=0

http://www.forbes.com/sites/afontevecchia/2013/04/02/italian-president-girogio-napolitano-is-trying-to-avert-a-crisis-of-systemic-proportions/

http://news.yahoo.com/italys-wise-men-seek-end-political-crisis-president-144743141.html