Misappropriation of company’s files

The Court of Cassation has recently confirmed the charges for the crime of embezzlement with reference to the conduct of an employee who, after his resignation – followed by the hiring at a new company, operating in the same sector – had returned the company’s notebook with the hard disk formatted, taking possession of the computer’s data (Cass. pen. Sez. II, no. 11959/2020).

The employee in question, initially convicted for the crimes referred to in articles 635 quater (damage to computers or telecommunications’ systems) and 646 of the Italian criminal code (embezzlement), had been acquitted on appeal for the first offense but held responsible for the embezzlement of the company’s files, and had therefore filed an appeal to the Court of Cassation requesting to be acquitted also for that crime, on the assumption that the computer data cannot be embezzled, as they cannot be classified as “movable goods”.

And indeed, if it may seem obvious that someone can steal a file or take possession of it, from a criminal point of view, for the majority of the scholars, the question was – at least until the said ruling – far from obvious, considering that in the criminal code system the notion of “movable good” is not defined by law (the only regulatory provision is contained in art. 624 of the Italian Criminal Code, which equates energies to mobile goods in relation to the crime of theft), so that the scholars, over time, had outlined a criminal notion of movable goods, identifying some of its minimum features, represented by the materiality and physicality of the object, which must be definable in space and capable of being moved from one place to another.

The Court of Cassation, with the ruling at issue, starting from the criminal law notion of “movable good” and from the analysis of commonly accepted notions of “file” (as a set of data, stored or processed through the use of binary digits, which physically occupy a portion of quantifiable memory) has overcome the logical obstacle – pointed out by the majority of the scholars – represented by the impossibility to perceive the file from the sensory point of view, arguing that even if the file cannot be materially perceived, it still has “a physical dimension consisting of the size of the data that compose it, as evidenced by the existence of units of measurement of the capacity of a file to contain data and by the different size of the physical supports in which the files can be stored and processed” and therefore “even in the absence of the requirement of perceivable material apprehension of the file itself (except for when it is fixed on a device that contains it), certainly the file represents a movable good”.

This interpretation, according to the Court, does not conflict with the principle of specificity and the prohibition of analogy in criminal law, considering that “in the interpretation of the notion of movable good, contained in art. 646 cod. pen., in relation to the characteristics of the computer data (file) as identified above, it occurs what the Constitutional Court had to define as the “phenomenon of the description of the criminal case by resorting to elements (scientific, ethical, factual or of common language), as well as notions specific to non-legal disciplines”, a situation in which “the reference, even implicit, to other sources or external naturalistic elements does not violate the principle of legality of the criminal law – even though there has been a change in those sources with respect to the moment in which the criminal law was enacted – once the real situation has not being changed substantially, and the substantial content of the expression used to indicate the elements of the criminal case and the disvalue of the crime have remained the same. In this case, the evolution of the sources of referral it is used through a logical-systematic, axiological interpretation and in accordance with the principle of unity of the legal order, so not by analogy” (Constitutional Court no. 414 of 1995).“