This is what was recently stated by the Italian Supreme Court of Cassation, second criminal chamber, with the judgment no. 11959 of April 10, 2020.


The background.
The case in question originates from the conduct contested to the defendant, who, before resigning from the company for which he used to work, had returned the company notebook with the formatted hard disk, without traces of the computer data originally present. Some of these data were found copied on the defendant’s personal computer. With the judgement dated June 30, 2017, the Court of Turin condemned the defendant for the crime of computer system damage provided for by Art. 635quater of the Italian Criminal Code. The decision of the judge of first instance was partially overturned by the Court of Appeal of Turin, which with the sentence of June 14, 2018 acquitted the defendant of this crime but at the same time condemned him to the different crime of embezzlement provided for by Art. 646 of the Italian Criminal Code. The defendant applied to the Court of Cassation, asking for his acquittal from the crime of embezzlement on the grounds that such a crime could not occur due to the impossibility of classifying computer data as a “movable property”, which together with money represents a necessary constituent element of the offence in question. The Supreme Court’s judges, departing from the prevailing case law, rejected the defendant’s ground of appeal and affirmed that computer data, due to their characteristics and functions, can be considered as a “movable property” under the criminal law and therefore can integrate those crimes that punish its misappropriation and/or embezzlement.

The previous case law and the meaning of “movable property”.
The argumentative process followed by the Supreme Court starts with the consideration that the Italian criminal law system lacks a positive definition of “movable property”, with the only exception of the provision of paragraph 2 of Art. 624 of the Criminal Code, which with specific reference to the crime of theft compares to the movable property “electricity and any other energy that has an economic value”. The absence of a legal definition therefore makes it necessary to leave to the interpreter the task of attributing to said expression the most appropriate and adequate meaning also in consideration of the social and technological evolution that can be recorded over time.
On that premise, the Court reviewed a number of (even relatively recent) rulings based on the traditional notion of “movable property”. These rulings identify as a necessary structural character of the movable property its intrinsic capacity to be the object of material apprehension, detention, abduction, seizure and appropriation. Character that would be missing when dealing with the so-called “intangible” assets, such as computer data. These assets, not being able to be materially perceived from a sensory point of view, could not be the object of subtraction or (in this case) of appropriation, except in the limited cases in which such conduct concerns the physical supports (e.g. the hard disk) containing computer data and not the computer data itself.

The new interpretation.
According to the judges of the Court, such an approach deserves to be overcome in favour of a more modern and up-to-date reading of the concept of movable property, which takes account of the evolution of the activities which man is capable of carrying out by means of computer equipment. It is, in fact, undeniable that technological and informatics evolution has progressively given rise to several examples of goods and entities which – although not physically apprehensible – are nevertheless endowed with those characteristics of materiality and physicality which allow their movement from one place to another and – consequently – their illegitimate appropriation and subtraction. “Movable property”, therefore, not (any longer) as a good susceptible of physical apprehension but as a good endowed with its own physicality and susceptible of transfer.

The concept of computer data and the Court’s judgement.
In this context, it is clear to the Court that also the file and the computer data must fall within the notion of movable property under criminal law. The file, states the Court, is nothing more than a set of computer data stored or processed within it. It is, in other words, a digital structure within which a certain amount of data is stored and saved. Such a structure certainly has its own physical dimension, determined by the number of components necessary for the archiving and reading of the data entered in it: those elements are not abstract (immaterial) entities, as they physically occupy a quantifiable portion of memory and may undergo operations which can be perfectly recorded by the operating system, such as creation, copying and deletion.
The file, therefore, despite lacking the requirement of a material perceptibility, is nevertheless characterized by an unquestionable physicality and materiality, as demonstrated by the fact that any digital files can be well transferred from one IT support to another, travel through the Internet, be stored and maintained within virtual (cloud) environments, all regardless of their positioning within physical structures directly apprehensible by man. On the basis of this interpretation, concludes the Court, the computer file not only can but must be considered as a movable property, presenting all the characteristics for being the object of the conduct of abduction and appropriation relevant in crimes against properties.
The Court also reminds that the validity of this interpretation is further confirmed by a parallelism with money, which as seen is expressly indicated as a possible object of embezzlement, together with the movable property. Well, money, in the same way as computer files, is clearly susceptible to accounting operations, as well as legally effective transfers, even in the absence of a material apprehension of the physical units representing the money amount; equally, conducts aimed at the removal or appropriation of the money are perfectly configurable, even in the absence of any physical contact with the money, through telematic banking operations.

The principle of law.
On the basis of these considerations, the judges considered it necessary to go beyond the previous case law by affirming the following principle of law: “computer data (files) can be qualified as movable properties under criminal law and, therefore, give rise to the crime of embezzlement the removal from a company personal computer, entrusted for work purposes, of the computer data saved there, subsequently providing for the deletion of the same data and the return of the formatted computer”. Will a similar change in interpretation be sufficient to grant a real and effective protection of digital files, fundamental part of the current intangible assets of any company?

Giorgio Rapaccini