On 23 May, the Italian Supreme Court issued judgment no. 19421, affirming that unauthorized access to the WhatsApp application system falls within the scope of the protection provided by Article 615-ter of the Italian Criminal Code – unlawful access to an IT system – given that WhatsApp qualifies as an information system.
The Facts of the Case
The defendant – the husband undergoing separation proceedings – took possession of his ex-wife’s two mobile phones and, despite the data being password-protected, extracted several WhatsApp messages that she had exchanged with another person, as well as the call log between them. He then submitted this material to his legal counsel for use in the civil separation proceedings, with the aim of obtaining a judgment attributing fault to the wife. The wife filed a criminal complaint against him for several offences, including unlawful access to an information system.
The Petition before the Supreme Court
The defendant lodged an appeal before the Court of Cassation, raising multiple grounds. Among these, he argued the absence of sufficient evidence to support the charge of unlawful access to an information system, and the untimely filing of the criminal complaint.
The Time Limit for Filing a Criminal Complaint
The Supreme Court clarified that the time limit for filing a criminal complaint begins to run from the moment the injured party acquires certain knowledge of the offence — both in its objective and subjective elements — based on serious and concrete indications.
In the case at hand, the Court held that the injured party became aware of the offence only when her former husband made procedural use of the unlawfully acquired data in the civil proceedings. As a result, the complaint, filed shortly thereafter, was deemed to have been submitted within the statutory time limit.
The Unlawfulness of the Intrusion
The Court of Cassation further clarified that the criminal unlawfulness of the conduct under Article 615-ter of the Italian Criminal Code lies in the breach of the system’s protection mechanisms — in this case, the presence of password security. The injured party had declared that both mobile phones were protected by passwords, and the Court found her testimony to be credible.
This statement was therefore considered valid evidence that the defendant accessed the victim’s mobile devices without authorization. By doing so, the former husband unlawfully intruded into a private communicative space to which only the wife had rightful access, given that the devices were in her exclusive possession and were secured by password protection.
Such conduct constitutes the offence of unauthorized access to an information system, as it infringes upon the victim’s right to exclude others from accessing her personal and protected digital environment.
The Use of WhatsApp Chats in Divorce Proceedings
The Supreme Court also clarified that the subjective motives or purposes behind the unauthorized access to the system are legally irrelevant.
Accordingly, the use of WhatsApp chats in separation proceedings does not constitute a ground of justification and does not exclude the criminal liability of the conduct. The act remains punishable under criminal law, regardless of any alleged evidentiary or strategic intent linked to the civil dispute.
WhatsApp qualifies as an information system within the meaning of Article 615-ter of the Italian Criminal Code.
The Court of Cassation held that WhatsApp qualifies as an information system within the meaning of Article 615-ter of the Italian Criminal Code. The Court reasoned that WhatsApp is a software application specifically designed to manage communication between users via messages, voice calls, and video calls, by transmitting data through computer networks.
It operates through the integration of hardware, software, and network infrastructure to deliver its services. Consequently, the Court concluded that WhatsApp falls within the scope of protection afforded by the provision governing unauthorized access to information systems.
Conclusion of the Case
The defendant’s appeal was dismissed with regard to these points.
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