The Court of Cassation, with verdict n. 18826 of 29 April 2013, has ruled that using another person’s nickname and personal data online is considered identity theft referred to in the article 494 of the Penal Code.
The case in question is rather peculiar. A woman had published her ex-employer’s nickname and telephone number in an erotic chat, who later received in her mobile phone messages, both text and photos, with pornographic content.
There have already been other cases of users creating email or social network accounts using personal data of third parties. The law had already stepped in, ruling that the art. 494 concerning identity theft includes «the behaviour of those that create and use email accounts, illegitimately using personal data of other subjects, misleading other users from the internet network who are being shown the false data and with the purpose of cause damage to the party that had their data stolen.» (Cass. pen. 15 Dec 2011 – 03 Mar 2012 n. 12479; Cass. pen. 08 Nov 2007 – 04 Dec 2007 n. 46674). Considering the case described above as a case of identity theft doesn’t seem to be completely correct though, even if the Court has interpreted it differently.
The Court clarified that even if «the accused has not created an account using another person’s data illegitimately» the offence still stood since the law «other than the public trust, protects the identity of third parties, which can be compromised by possible usurpations, but also by attributing to said third parties, false personal characterizations with the purpose of causing damage». Therefore «when nicknames, as in the case described above, are without a doubt ascribable to a natural person, they assume the same value of a pseudonym (with some conditions), i.e. an imaginary name, which attribution to anyone means committing the offence referred to in the article 494 of the Penal Code».
The accused was therefore sentenced for this offence referred to in the art. 494 of the Penal Code. The Court specified that it didn’t have freely interpreted the law, which would be prohibited, rather that its intepretation was coherent and it aimed at not leaving those juridical situations without protection, situations that the law intends to safeguard.