The misappropriation by an employee of company computer data (files) is considered embezzlement
Case ref: Court of Cassation, Criminal Section, Judgment no. 11959 of 10 April 2020
With Judgement no. 11959 of 10 April 2020, the Supreme Court of Cassation expressed its opinion on an issue that has been much debated in jurisprudence and doctrine, namely the crime of embezzlement pursuant to Article 646 of the Italian Criminal Code in the case of theft of computer data (“files”).
The case in question arose from the resignation of an employee who returned the company notebook that had been given to him for work purposes, with the hard disk completely formatted, without all the original company files (and subsequently partially recovered on his personal computer).
The Judges, after having gone through in detail the various and contrasting jurisprudence and doctrine on the subject, rejected the worker’s defense that computer data could not be misappropriated as they could not be defined as “moveable things”.
In this regard, the Court observed that “although the file cannot be materially perceived from a sensory point of view, it has a physical dimension consisting of the size of the data making it up, as shown by the existence of units measuring the capacity of a file to contain data and the different size of the device in which the files can be stored and processed’“. The judgement goes on to say: “therefore, we do not concur with the majority of caselaw and doctrine that tends to the belief that computer data does not possess the characteristics of physicality, pertaining to a “moveable thing” (in the criminal law sense of the word)”.
With specific regard to configuring the conduct as appropriation with reference to computer data, in the Court’s opinion, we must consider “the ability of the file to be transferred from one computer to another, maintaining its structural characteristics, as well as the possibility that the same data travels through the Internet to be sent from one system or device to another, at considerable distances, or to be “stored” in “virtual” environments (corresponding to physical places where computers store and process computer data)”. According to the Judges, the existence of the above-mentioned characteristics confirms “the logical presumption that computer data can be the subject of theft and misappropriation”.
On the basis of these assumptions, the Supreme Court maintains that the file certainly represents a «moveable thing», definable as to its structure, the possibility of measuring its extension and the ability to contain data, which can be transferred from one place to another, even without physical human intervention.
As a result of the extensive analysis contained in the judgment, the Supreme Court states the following principle of law: “computer data (files) can be qualified as moveable property under criminal law and, therefore, the removal of data from a company PC and the return of the computer «formatted» constitutes embezzlement”.