The Court of Cassation, by judgment no. 11959/2020, ruled on the qualification of computer files as movable property, modifying the previous orientation to the contrary.
The decision derives from the case of a company’s former employee, hired by another company operating in the same field, who was asked to return the company’s laptop.
At the moment of the restitution, the hard disk appeared to be empty of computer data previously present, then found in the subject’s personal laptop seized as evidence. The formatting of the hard disk hasn’t just erased data, but it also caused the malfunctioning of the company computer system.
This raised the issue if, by erasing and removing digital files, the subject committed an embezzlement, an offense which has as object movable property.
In previous cases, it was excluded that computer files could be object of the offence referred to in art. 624 c.p., because its nature makes the realization of objective element required by the law, meaning the loss of possession of the res by the rightful owner, not possible.
At the same time, in regards to the circumstance of the embezzlement, it had been many times stated that an immaterial good cannot be the material object of a damaging conduct, unless the conduct has as object documents that represent intangible assets.
The previous rulings drew inspiration by the literal content of the incriminating norm and recalled the notion of movable property characterized by the necessity of the good to be liable to “physical detention, subtraction, possession or appropriation, and which could itself be moved from a place to another because it has an attitude to move by itself or can be transported from a place to another or, although unmovable in its origin, can be made so by a mobilization activity of the same author of the fact through its avulsion or enucleation”.
The Court thought instead that it was necessary a deeper exam and, starting from an analysis of the structure of the file, stated that it has a physical dimension made up by the size of the files, as demonstrated by the existence of a measurement unit of the capacity of the file to contain data and the different size of the physical support in which files can be stored and elaborated.
To confirm the possibility of a computer document to be an object of a subtraction and appropriation conduct, the Court referred to “the ability of files to be transferred from a digital support to another, maintaining its own structural characteristics, as well as the possibility for the same data to “travel” through the internet to be sent from a system or device to another, in significant distances, to be stored in virtual spaces”.
These considerations, in addition to the undisputable patrimonial value of the computer data, convinced the Judge to consider that the limitation deriving from the lack of the “physicality” requirement of the detention does not represent an element that can hinder the attribution of a computer data to the category of movable property.
In light of the considerations above mentioned, the Court therefore stated the following principle:
“even if it lacks the requirement of the physically perceivable apprehension of the computer file in itself considered (if not when the file is attached to a digital support that contains it) certainly the file represents a movable property, defined for its structure for the possibility to measure its extension and the ability to contain data, liable to be transferred from a place to another, even without the intervention of physical structures directly apprehensible by a person”.
The theorical statement has important practical consequences given that if data is a movable property, all offences referred to the subtraction of movable property could be applied even to the subtraction of computer files.