The website www.italia programmi.net is again in the news for trying to extort a payment to none other than President of the Italian Republic Giorgio Napolitano.
The mechanism of the scam of the website has been repeatedly reported on our blog: the website offers users the possibility to download some softwares, notoriously known to be free, in exchange of the registration of their data.The truth is that, through the registration procedure the consumers subscribe without their knowledge a two-year contract with the company Estesa Limited based in the Seychelles, for the provision of a software at an annual cost of €96 to be paid in advance once a year. After the registration users start to receive letters which threaten them of a legal action if they do not pay by a certain date. Of course, the fear of facing up to a trial leads many citizens to pay off.
Despite the heavy financial penalty for misleading and aggressive commercial practices imposed by the Antitrust Authority in January, the intimations of Extended Limited keep harassing Italian people. Surprisingly, on the 6th of February a letter of payment has also reached the palace of the Italian Republic Presidency, the Quirinal.
As reported by the press, the request of a payment of 96 euros (plus 8.5 for costs with relative transaction code (F681819) and Iban for the transfer to be sent before the 23rd of February to a bank situated in Cyprus) was sent to the Italian Republic President Giorgio Napolitano.
Through the offices of the Quirinal Palace, President Napolitano, who probably has never personally registered on the website, reported the incident to the police, as thousands of other people did before him.
We hope that the many victims of the scam who have been written us during the last months could feel a bit heartened by the fact that the fraud is unevenly distributed, and it do not save the high places!
The decision of the Italian Supreme Court no. 5525 of the 5th of April, 2012 is a real leading case which affirms the right to contextualization of the information and the right to the truth at the present time.
It is not a decision on the right to oblivion, as superficially commented. On the contrary, it is a decision which states the right to the updating of the news.
The truth is truth only if it is present truth. If the truth is dated 20 years ago, it is a partial truth, and therefore is not truth.
The facts: a politician is charged with corruption in 1993. The news is properly reported in the newspapers of the time. Then the politician is acquitted. After many years typing the name of the politician in search engines the results show the news of the imputation, but not that of the acquittal.
Of course, the first news is true. But today it represents a partial truth, a false representation of reality, profoundly affecting the right to personal identity.
The news, therefore, has to be contextualized.
The theme is amply illustrated in THIS article, which is quoted in the decision.
News items stored in newspapers’ historical online archives are to be considered incomplete in that they do not report additional developments of the facts, and therefore must be updated. Thus, with this motivation, the Italian Supreme Court imposes the obligation for publishers to update their online news archives.
In judgment no. 5525 of the Third Civil Division, the Italian Supreme Court has ruled that online newspapers will in future be under the obligation to equip their archives with “an appropriate system designed to provide information (in the body of the text or in the margin) on whether there exists a follow-up or any development to news items and if so what the content is[...] allowing users swift and easy access to the updated information”.
The case before the Court concerns the news about the criminal involvement of a politician from Lombardy in the north of Italy. The man had been arrested in 1993 on charges of corruption, but was subsequently acquitted. The news of his arrest, however, still appears among search engine results because of one article in the online news archive of the Italian newspaper “Corriere della Sera”.
The man had appealed firstly to the Italian Data Protection Commissioner and subsequently to the Court of Milan requesting the removal of the judicial data relating to him and complaining of the lack of any update to the archived news item reporting on the favorable outcome to the issue. As an alternative he asked for an update linked to the news item or the transfer of the item itself to a part of the site not indexed by search engines. However, neither the Commissioner nor the Court accepted his requests.
The Italian Supreme Court, however, has accepted the claimant’s grounds.
While establishing that in any case there were no grounds for libel as the events described in the article were true at the time of its publication, the Court acknowledged the incompleteness of the information in the light of the subsequent events.
In an attempt to balance the requirements of public interest, guaranteed by the freedom of the press, with the interests of the individual, protected by the right to privacy and the right to oblivion, the Court thus ruled that the archived articles must be accompanied by their relative updates.
In this way the decision aims to safeguard not only the right of the person involved in the events to protect their own personal and moral identity, but also the right of users to receive accurate and complete information. The judgment of the Supreme Court, therefore, attaches a new value to the right to oblivion (the right to be forgotten) within the very principles of the freedom of the press itself.
The Italian Supreme Court did not, however, attribute any responsibility to search engines, which in the judgment were defined as “mere intermediaries.”
The Italian press have recently reported on the first case of fraud in Italy through the unlawful use of a digital signature.
According to reports, a Rome businessman discovered through a check carried out at the Chamber of Commerce in 2011 that all his company’s shares had been registered without his knowledge to a man by name of David Henry Antinucci, who in this way had become the sole member of the company and had also appointed himself sole director, with the authority to transfer the company’s headquarters.
With the appointment of the new sole director, the deeds of conveyance had been transmitted to the Chamber of Commerce via the Internet by an accountant’s office by means of the activation of an electronic smart card with a digital signature, which is obligatory for company communications with the Italian Register of companies. In this case the smart card had been registered in the Rome businessman’s name but had not been requested by him.
The probe conducted by the IT investigation section of the Special Telematic Fraud Unit of the Italian Financial and Tax Police has led to the identification of three suspects, including Antinucci, who now face prosecution for personation, false statements or proof given to the electronic signature authenticator regarding their own and other people’s identities and capacities in addition to forgery of public documents, private documents and electronic documents.
According to the investigation, Antinucci was aided and abetted in the fraud by the owner of a business consultancy firm who appears to have been a total tax evader for 16 years. The two men are alleged to have used a photocopy of the businessman’s ID card to activate two smart cards at a certification services agency after filling out the appropriate form.
The owner of the agency declared that he had had direct contact with the two men to issue the smart cards and that they had informed him that the businessman would not be present to sign the smart cards in person as he was abroad on business. The accountant who forwarded the requests to the Chamber of Commerce said he had worked in good faith on the documentation he had been sent by the owner of the agency and had not checked it further.
From what we read in the press, the judges are convinced that neither the agency owner nor the accountant are criminally involved in the scam, although they are guilty of carelessness when initiating the procedure.
However, the accountant has been reported for violation of the rules of discipline to his professional association for failing to verify the authenticity of the signatures which were not added in his presence when transferring the shares.
In the light of this reconstruction, we can say with some certainty that this case arouses a certain level of interest not only because of the novelty of the method apparently used for the fraud but also for the different positions of responsibility which emerge in relation to the various individuals involved in the case.
The Italian law no. 27 of 24th March 2012, on “Conversion with amendments of Decree-Law no. 1 of 24th January 2012, concerning urgent measures on competition, infrastructure development and competitiveness known as “ The Liberalization Decree” or ” The Salva-Italia Decree” was published in Ordinary Supplement no. 53 of Official Gazette no. 71 of March 24th, 2012.
The text of the conversion law which was finally approved by the Chamber of Deputies on March 22nd contains, among other things, significant innovations for freelance professionals.
There was confirmation of the abrogation of the fee rates for those professions which are regulated in professional associations, while a new measure provides for fixing compensation in the event of liquidation by a court with reference to the parameters established by the Minister (Art. 9, paragraph 2). The above parameters must be established within 120 days of the date of the law converting the decree coming into effect. By decree of the Minister of Justice, in agreement with the Minister of Economy and Finance, the parameters for costs and contributions to professional pension funds and archives based on previous fee rates will also be fixed within the same time scale. In addition it is explicitly the aim of the decree to provide long term safeguards for the financial stability of the professional pension funds.
All fees for professional services are to be agreed at the time of the appointment in the terms set out by the single associations. The professional must make known to the client the level of difficulty of the assignment and provide all relevant information regarding any possible additional costs which may arise over the course of the entire assignment; in addition the professional must also make known to the client the information concerning the insurance policy which covers eventual damages caused in the course of professional activity (paragraph 4). The professional is also required to present the client with an approximate estimate in which the cost of each item, including expenses, taxes and contributions must be stated. During the modifications carried out during the process of conversion into law the prediction provision according to which failure to comply with the regulations constitutes a violation of the rules of discipline on the part of the professional was deleted from paragraph 4.
The news of the failure of Mediaset’s appeal against the American citizen who came into possession of the domain “mediaset.com” has been widely reported in the Italian media.
The matter began a year ago, when possibly due to oversight or misunderstanding the Milan based company failed to renew its domain “mediaset.com” which was subsequently bought at an online auction by Didier Mediba, a sales agent from Fenicius Llc, a Delaware company.
In November 2011, Mediaset appealed to the Arbitration and Mediation Centre of the WIPO, the World Intellectual Property Organization in order to obtain the reassignment of the domain .
The reasoning put forward by the Italian company founded by Silvio Berlusconi related to the apparent similarity of the domain “Mediaset.com” with the other domains of which it owns the rights and the lack of any real interest on the part of Mr. Madiba in purchasing the domain.
The Fenicius LLC legal team replied to the allegations by claiming that the word “Mediaset” is formed from two words very common in English, “media” and “set”, to which the Italian company had no trademark rights. In addition to this, the lawyers maintained that it was Mr. Madiba’s intention to set up in business precisely in the field of media storage devices.
WIPO’s arbitration surprisingly upheld the reasons put forward by the defence. While recognizing the resemblance between the domain in question and the trademarks owned by Mediaset Spa, WIPO considered the allegations of bad faith on the part of the Fenicius Llc sales agent made by Mediaset Spa to be too generalized and insufficient.
Therefore, the domain “Mediaset.com” remains in the hands of Mr. Madiba, at least until the two sides reach a commercial agreement for its transfer.
To date, the web address corresponds to a site that sells equipment for media storage.
We offer here an article by Giusella Finocchiaro which was published in the March issue of the newsletter of the online magazine “ICT4Executive”.
The conservation of electronic documents raises a number of doubts among professionals in terms of procedure and related legal issues. Here we will try to clarify the main features of the topic by means of specific questions and answers.
What are the main rules regarding the conservation of electronic documents in Italy?
The Digital Administration Code, recently amended by Legislative Decree no.235 of December 30, 2010, regulates the composition, management and conservation of electronic documents. With particular regard to conservation, the primary law reference is art. 43, which establishes the general principle of freedom of the form of conservation of electronic documents, establishing that ” when stored in digital form, records kept in archives, accounting records, correspondence, and any act, document or data, the conservation of which is required by law or regulation, are valid and relevant with full legal effect if their reproduction and conservation over time are managed so as to guarantee they conform to the original documents in compliance with the technical regulations provided for by Article 71”. Naturally, if the documents have originally been produced in a digital format, it follows that the logical form of conservation for said documents must be digital. Therefore, the process of electronic storage of documents can affect both electronic and analogical documents.
How does the process of conservation work?
The procedure is carried out by storing on optical media the document itself in the case of electronic documents, or its image in the case of analogical documents. The process is completed by affixing, the time reference and the digital signature of the data custodian on the set of documents, which guarantees the proper conduct of the process. The requirements of the system of conservation are set out in art. 44 of the Digital Administration Code: in particular, there must be reliable identification of both the individual who composed the document and also that of the reference administration or organization. The integrity and legibility of the document and the availability of information to identify it must also be guaranteed. In the light of these regulations we can affirm that in invoking the principle of freedom of the forms of conservation, the law grants a broad area of autonomy. It is in fact up to the interested parties to fully establish the procedures of conservation.
What are the main new regulations regarding conservation?
Among the main new features introduced in the Legislative Decree of December 30, 2010, particular importance must be given to the provision under Art. 44 bis of the Digital Administration Code. The regulation provides for entrusting the activity of conservation and certification to public and private bodies, who may also seek accreditation from DigitPA. Also worthy of note is the provision under Art. 44, paragraph 1 bis, according to which the data custodian works in consultation with the data controller.
Does the conservation of documents raise questions relating to personal data protection laws?
It is necessary to fit the data custodian into the context of the protection of personal data. In fact, we should ask ourselves whether the data custodian has independent control over the process or whether he is merely responsible for the process. This is a question of no little importance considering the fact that the process of conservation can be entrusted to a third party with an outsourcing contract.
So what should the right approach to this issue be?
It should be as open an approach as possible, considering that the law places fewer restrictions than is thought. In fact, the law provides the tools, but does not place restrictions on the freedom of the interested parties to define procedures. So, plenty of scope for autonomy of negotiation.
We offer here an article by Giusella Finocchiaro which was published in the March issue of the newsletter of the online magazine “ICT4Executive”.
The conservation of electronic documents raises a number of doubts among (legal?) professionals in terms of procedure and related legal issues. Here we will try to clarify the main features of the topic by means of specific questions and answers.
What are the main rules regarding the conservation of electronic documents?
The Digital Administration Code, recently amended by Legislative Decree no.235 of December 30, 2010, regulates the composition, management and conservation of electronic documents. With particular regard to conservation, the primary law reference is art. 43, which establishes the general principle of freedom of the form of conservation of electronic documents, establishing that “ when stored in digital form, records kept in archives, accounting records, correspondence, and any act, document or data, the conservation of which is required by law or regulation, are valid and relevant with full legal effect if their reproduction and conservation over time are managed so as to guarantee they conform to the original documents in compliance with the technical regulations provided for by Article 71”. Naturally, if the documents have originally been produced in a digital format, it follows that the logical form of conservation for said documents must be digital. Therefore, the process of electronic storage of documents can affect both electronic and analogical documents.
How does the process of conservation work?
The procedure is carried out by storing on optical media the document itself in the case of electronic documents, or its image in the case of analogical documents. The process is completed by affixing, the time reference and the digital signature of the data custodian on the set of documents, which guarantees the proper conduct of the process. The requirements of the system of conservation are set out in art. 44 of the Digital Administration Code: in particular, there must be reliable identification of both the individual who composed the document and also that of the reference administration or organization. The integrity and legibility of the document and the availability of information to identify it must also be guaranteed. In the light of these regulations we can affirm that in invoking the principle of freedom of the forms of conservation, the law grants a broad area of autonomy. It is in fact up to the interested parties to fully establish the procedures of conservation.
What are the main new regulations regarding conservation?
Among the main new features introduced in the Legislative Decree of December 30, 2010, particular importance must be given to the provision under Art. 44 bis of the Digital Administration Code. The regulation provides for entrusting the activity of conservation and certification to public and private bodies, who may also seek accreditation from DigitPA. Also worthy of note is the provision under Art. 44, paragraph 1 bis, according to which the data custodian works in consultation with the data controller.
Does the conservation of documents raise questions relating to personal data protection laws?
It is necessary to fit the data custodian into the context of the protection of personal data. In fact, we should ask ourselves whether the data custodian has independent control over the process or whether he is merely responsible for the process. This is a question of no little importance considering the fact that the process of conservation can be entrusted to a third party with an outsourcing contract.
So what should the right approach to this issue be?
It should be as open an approach as possible, considering that the law places fewer restrictions than is thought. In fact, the law provides the tools, but does not place restrictions on the freedom of the interested parties to define procedures. So, plenty of scope for autonomy of negotiation.
We offer here an article by Giusella Finocchiaro which was published in the March issue of the newsletter of the online magazine “ICT4Executive”.
The conservation of electronic documents raises a number of doubts among (legal?) professionals in terms of procedure and related legal issues. Here we will try to clarify the main features of the topic by means of specific questions and answers.
What are the main rules regarding the conservation of electronic documents?
The Digital Administration Code, recently amended by Legislative Decree no.235 of December 30, 2010, regulates the composition, management and conservation of electronic documents. With particular regard to conservation, the primary law reference is art. 43, which establishes the general principle of freedom of the form of conservation of electronic documents, establishing that ” when stored in digital form, records kept in archives, accounting records, correspondence, and any act, document or data, the conservation of which is required by law or regulation, are valid and relevant with full legal effect if their reproduction and conservation over time are managed so as to guarantee they conform to the original documents in compliance with the technical regulations provided for by Article 71”. Naturally, if the documents have originally been produced in a digital format, it follows that the logical form of conservation for said documents must be digital. Therefore, the process of electronic storage of documents can affect both electronic and analogical documents.
How does the process of conservation work?
The procedure is carried out by storing on optical media the document itself in the case of electronic documents, or its image in the case of analogical documents. The process is completed by affixing, the time reference and the digital signature of the data custodian on the set of documents, which guarantees the proper conduct of the process. The requirements of the system of conservation are set out in art. 44 of the Digital Administration Code: in particular, there must be reliable identification of both the individual who composed the document and also that of the reference administration or organization. The integrity and legibility of the document and the availability of information to identify it must also be guaranteed. In the light of these regulations we can affirm that in invoking the principle of freedom of the forms of conservation, the law grants a broad area of autonomy. It is in fact up to the interested parties to fully establish the procedures of conservation.
What are the main new regulations regarding conservation?
Among the main new features introduced in the Legislative Decree of December 30, 2010, particular importance must be given to the provision under Art. 44 bis of the Digital Administration Code. The regulation provides for entrusting the activity of conservation and certification to public and private bodies, who may also seek accreditation from DigitPA. Also worthy of note is the provision under Art. 44, paragraph 1 bis, according to which the data custodian works in consultation with the data controller.
Does the conservation of documents raise questions relating to personal data protection laws?
It is necessary to fit the data custodian into the context of the protection of personal data. In fact, we should ask ourselves whether the data custodian has independent control over the process or whether he is merely responsible for the process. This is a question of no little importance considering the fact that the process of conservation can be entrusted to a third party with an outsourcing contract.
So what should the right approach to this issue be?
It should be as open an approach as possible, considering that the law places fewer restrictions than is thought. In fact, the law provides the tools, but does not place restrictions on the freedom of the interested parties to define procedures. So, plenty of scope for autonomy of negotiation.
Telecom Italy is under investigation by the Milan Public Prosecutor’s Office for alleged fraud connected to false SIM cards. The company’s presumed involvement is based on the content of Legislative Decree no. 231 of 2001 regarding the criminal liability of corporations arising from administrative offences.
The Public Prosecutor’ s Office is carrying out investigations into criminal conspiracy, receiving and forgery. 14 of the 99 people under investigation for irregularities in the management of SIM cards are Telecom employees while all the others are authorized Tim dealers.
Between 2007 and 2009, according to the prosecutors’ reconstruction, the Telecom employees under investigation enabled millions of SIM cards registered to bogus individuals with the aim of receiving higher rates of incentive pay, as the company paid bonuses to employees in relation to the number of SIM cards enabled. The authorized Tim dealers then sold them under the counter to people in whose interest it was not to appear as SIM card holders and in many cases cards were then used to commit crimes (particularly IT crimes).
Thanks to the SIM card scam the Telecom employees gained in terms of incentive payments, the Tim dealers increased their earnings thanks to the higher price at which they sold cards already made out in someone’s name and Telecom itself also benefitted as this business increased its market share and generated further traffic. According to the investigation coordinated by the Milan Public Prosecutors Massimiliano Carducci and Francesco Cajani, it would appear that in 2008 the company made an unfair profit of some €231 million.
Telecom has issued a statement in which it describes itself as “the injured party” and announces that “it will sue all the defendants for damages in a civil proceeding,” stressing that in 2008 it had filed “two complaints as the injured party and from the very outset of the investigation had taken action to suspend the 14 employees, (none of whom were executives), who were involved at the time and who are under investigation in the current judicial proceedings.”
Professional freelancers are allowed to use non original software applications as their activity of providing professional services cannot be considered as a business concern.
With this motivation, the Court of Bologna acquitted an architect accused of copyright infringement for using 9 illegally duplicated software applications in his professional activity including Autodesk Autocad, Microsoft Office and several Adobe applications, for a total value of €17,835 net of VAT.
The architect ended up in Court after an inspection by the tax police unit of the Italian Financial Police Corps carried out in his offices. The charge related to the violation of art. no. 171 bis of Law no. 633 of 1941, which punishes “whoever unlawfully duplicates computer programs for gain and whoever for the same purpose imports, distributes, sells, keeps for commercial or business purposes or rents programs contained in packages not labelled by the SIAE (the Italian Authors and Publishers Association) “.
The judge Alberto Zanoli acquitted the architect maintaining that no crime had been committed since the work done by the architect, is incontrovertibly to be considered as a professional service and as such differs from the activity of a business concern to which art. 171 bis of Law no. 633 of 1941 refers.
According to some commentators the principle expressed in this judgment also seems to apply to the purely private use of pirated programs.
If employees delete files from a company’s computer, or get possession of a company’s cd-roms, they may be charged with theft or malicious mischief, even if the files can still be recovered.
This was recently determined in judgment no. 8555 of the Italian Supreme Court when ruling on a case in which, on resigning due to severe tensions at work an employee decided to take his revenge on the company by deleting certain files from his computer workstation and taking away the backup cd-roms.
Confirming the judgment of the Court of Appeal, the Supreme Court rejected the reasons put forward by the former employee who alleged that the crime of theft could only be ascribed should the loss of data be permanent, whereas in the case in question the company had successfully regained possession of the files thanks to the help of a technician specialized in the recovery of deleted data.
With reference to Law no. 547 of 1993 which ratified the European Convention on software piracy, the Court noted that “the headword “delete” which appears in the provision of the law is not to be interpreted in its principal meaning which is that of unrecoverable elimination, but in the more specific technical sense intended by the provision of the law. “
Since “deletion” in computer science is understood as removing data on a temporary basis by putting it in the recycle bin, and permanently by emptying the bin, according to the Supreme Court it is correct to maintain that any intended deletion which does not rule out the possibility of recovery through the use of, albeit expensive special procedures, is also in line with the spirit of the law.
The Court thus confirmed the existence of damage suffered by the company, which was forced to spend both time and money to recover the files. Furthermore, in this specific case, the damage incurred is also to be interpreted in a strictly physical sense as most of the recovered files could no longer be opened and consequently were permanently lost.
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