Supported Decision Making (SDM) Agreement e meccanismi privatistici per supportare i soggetti vulnerabili nella dimensione digitale. Una prospettiva comparata

The digital dimension – the use of digital platforms, social media, smart tools - has increased the risks in terms of discrimination, surveillance, target advertising for vulnerable people, who are not always able to express their consent to data processing, and to exercise the related rights. The research points out that the notion of ‘vulnerable subject’ in the digital dimension does not necessarily coincide with that of ‘soggetto incapace’. Hence the need to identify the category of vulnerable subject in the digital dimension and identify mitigation measures. This research embraces the idea of the labelling approach to vulnerability and, in particular, uses the notion of ‘positional vulnerability’, to ‘identify’ vulnerable subjects in the digital dimension. According to the so called ‘positional vulnerability’, the subject’s afference to the group does not depend on the individual’s identity but on the subject’s position in relation to the risk context (in our case the digital dimension) and the actions that are precluded or restricted and the lack of resilience. The comparative analysis shows a privatistic tool - to the so-called SDM agreement featured in both the U.S. and Canadian experience - to support the vulnerable person’s decisions and suggests a ‘legal transplant’ in Italy. The SDM Agreement, inspired by the Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), is a ‘privatistic’ tool that allows people with disabilities to retain their decision- making capacity by choosing supporters to help them make choices and it could be a viable alternative to guardianship and to limited guardianship