By Elena Martini and Alessandro Pala
With Sentence No. 11959/2020 of 10 April 2020 the Italian Supreme Court found that computer data should be considered, for criminal purposes, a movable good capable of embezzlement pursuant to Article 646 of the Criminal Code.
The decision at issue originates from the conduct of a telecommunication company’s employee who, before resigning and being hired by a competitor, had returned the company laptop with the hard drive formatted, without any trace of the original files. This had caused a malfunction of the company IT system. Afterwards, the files at issue were found in the defendant’s possession on the PC used in the new company, which suggested that he had unlawfully taken possession of the former employer’s files.
In the first instance proceedings, the Criminal Court of Turin had found the defendant guilty of the crime of damaging a computer system, pursuant to Article 635 quater of the Criminal Code. However, The Turin Court of Appeal, in partially reforming the Criminal Court judgement, had acquitted the defendant of the crime referred to in Article 635 quater and sentenced him for the crime of embezzlement, pursuant to Article 645 of the Criminal Code.
The defendant appealed this decision before the Supreme Court, claiming infringement, by the Court Of Appeal, of Article 646 of the Criminal Code, in that the Court of Appeal erroneously considered that a file could be embezzled. Conversely, according to the defendant, since computer files could not be identified as movable goods, they could not even be subject to the crime at issue, which requires the embezzlement of money or assets of others.
The Supreme Court preliminarily noted that, according to prevailing case law, the particular nature of a computer file prevents the completion of the crime at issue. Such case law is based on a literal interpretation of Article 646, that identifies money or other movable goods as the material object of the conduct; however, the criminal law does not define what “movable goods” are, except as stated in Article 624 of the Criminal Code, relating to the crime of theft, that equates the movable goods with electricity and any other energy that has an economic value. The definition of “movable goods” is therefore determined by the case law and, according to the Italian court’s prevailing opinion, it would be characterised by “the fact that the good can be the subject of physical holding, removal, possession or appropriation and it can move from one place to another either because it is capable of moving or because it can be carried from one place to another or because, although not movable from its origin, it is made movable by the conduct of the author of the crime by means of its removal”.
Having said that, the Court departed from this majority opinion, based on the following grounds. The Court stated that, on the basis of the commonly accepted notion of “file”, that is a set of data processed and stored in a storage media, it should be concluded that a file has a physical dimension consisting of the measurable amount of data that it is composed of. Hence, the Court continues, the majority opinion, according to which a file does not have the physicality of a movable good, cannot be followed.
Nevertheless, the file would still not have the capacity of being materially appropriated irrespective of its digital support. However, the Court found that this requirement, traditionally considered necessary to qualify an object as a “movable good” capable of appropriation, would have lost its relevance given the activities that can be carried out through computer tools. In particular, a file can be transferred from one device to another, circulate through the Internet and be stored in a virtual environment. These characteristics would confirm that even a file may be the subject of appropriation or removal and that it should be in any case considered a movable good pursuant to Article 646 of the Criminal Code.
Based on the above, the Supreme Court clarified that «computer data (files) can be classified as movable goods under criminal law and, therefore, the removal from a company computer of the files stored there and the subsequent deleting of the same files and returning the computer formatted constitutes embezzlement».