Wife’s mobile phone infected with spy software. It’s a crime
(Supreme Court – Criminal Section V – sentence no. 15071 5.04.2019)
Once upon a time there were the diaries.
Today, the theme has evolved into spy software. And it’s very topical.
The Italian Criminal Code punishes, with the crime provided for by Article 617bis, the conduct of the person who installs equipment in order to intercept / interrupt communications and conversations.
The penalty provided has a range of between one and four years imprisonment, depending on the seriousness of the facts ascertained.
This crime was introduced into our penal system back in 1974, with the approval of Law no. 98/1974 on the confidentiality, freedom and secrecy of communications.
As it is easy to see, in 1974, the forms of interception discussed in Parliament were very different and far from the current instruments.
In a recent ruling, the Supreme Court responded to the following question: can current spy-software fall within the legal concept of “interceptions” taken into account by Article 617bis of the Criminal Code?
The answer is Yes.
The legal question is inspired by the conduct of a particularly jealous husband, who had installed malware on his wife’s tablet and smartphone.
Well, the Supreme Court – Section V Criminal – with the latest ruling on the subject, No 15071 of April 5, 2019, has answered the question, resolving any doubt.
After a brief reference to previous case law on the subject, (for a full and complete picture we recommend reading the ruling to United Sections of Supreme Court –Scurato– n. 26889, 28.04.2016, Rv 266905), the Court has reiterated how our Criminal Code severely protects the good of freedom of communication, of constitutional rank, severely sanctioning all those activities preparatory to the interception.
With the crime ex art. 617 bis c.p., in fact, the threshold of punishment is anticipated with respect to the interception of actual communication.
In other words, the simple installation of the spy software already constitutes a crime.
And nothing applies if then the program should never be activated or nothing is intercepted.
This is because the interception, as such, is considered by the jurisprudence a post factum with respect to the crime referred to in Article 617 bis of the Criminal Code, that is, a fact subsequent and further to the fraudulent installation of the interception tools, (so-called computer sensors).
For the sake of completeness, it should be remembered that, a fortiori, the action of interception in the strict sense constitutes an autonomous crime.
The Supreme Court, after clarifying the interpretative guidelines on the subject of the illicit installation of computer collection systems, thus rejected the proposed appeal, confirming the sentence pronounced against the jealous husband, to which is added the consequent compensation for damages in favor of the wife.
