On 10 March, the Court of Cassation handed down its judgment clarifying the criminal offense of the unlawful installation of a bugging device intended to intercept telephone communications or conversations.
Factual Background
The defendants had installed, in the mother’s car—used by the father—a voice recorder in order to surreptitiously capture the father’s conversations with his mistress and thereby prove adultery. The device subsequently recorded a conversation between the two individuals, and the information was later disseminated within the community to which the family belonged. The children and the mother were convicted by both the Trial Court and the Court of Appeal, inter alia, of the offense of unlawful installation of devices intended to intercept telephone communications or conversations.
The Appeal to the Court of Cassation
The defendants lodged an appeal before the Court of Cassation, contending, inter alia, that the device in question was merely a voice recorder and that the father’s conversation with his mistress had been captured inadvertently due to the activation of the Bluetooth system, with the result that the specific intent required by the incriminating provision was lacking.
The punishable conduct under the offense of unlawful installation of bugging devices
Insofar as relevant here, the offense criminalises the conduct of any person who, unlawfully and with the intent of obtaining knowledge of a telephone communication or conversation between other persons, installs devices capable of intercepting such communications or conversations.
The Interest Safeguarded by the Criminal Provision
The court of last instance specified that the offense anticipates the protection of privacy and the freedom of communications by criminalising conduct preparatory to the actual infringement of the protected legal interest. While privacy and the freedom of communications are effectively violated at the moment of unlawful interception—which constitutes a separate criminal offense—the provision at issue punishes the conduct and acts that lead to such violation, which has not yet occurred but will result from that conduct and those acts.
Scope of Application of the Criminal Provision
The Court of Cassation clarified the scope of application of the incriminating provision: it encompasses conduct and acts preceding the interception activity and enabling it to take place.
Accordingly, the installation of voice recorder and bugging devices falls within this scope, as it constitutes the necessary activity for the subsequent unlawful interception. What is relevant is solely the act of installing such devices, whereas any subsequent unlawful interception is to be assessed for the purposes of establishing the separate, specific offense.
Therefore, the offense is made out even where the device did not function or was not activated. The only circumstance capable of excluding criminal liability is the absolute unsuitability of the device.
Persons Whose Communications May Be Intercepted
The Supreme Court specified that the installation of a covert listening device concerns the interception of telephone communications or conversations of persons other than the individual who carried out the installation.
Accordingly, what is decisive is that the installation is aimed at capturing conversations in which the agent does not participate.
Furthermore, the interception may relate not only to telephone conversations but also to communications between persons physically present.
Outcome of the Appeal
The Supreme Court upheld the conviction for the offense of unlawful installation of a device capable of intercepting telephone communications or conversations.
The law firm Dal Pozzo in Milan provides legal assistance to private individuals, public entities, and businesses, including matters related to cybercrimes.