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posted by admin on marzo 19, 2012

computer crimes

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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.

The recent firing of a British employee who seems to have lost her job for posting a complaint on her Facebook profile about her salary, leads us to thinking again about the question of the uses employees make of technological resources in Italy. Here we are talking about Facebook only because it is the most widespread social network.

1) Is it forbidden to use Facebook in the workplace?

Not always, it depends, the employer has the right to choose.

2) How can we know what the employer’s choice is?

We need to read employer policy or the guidelines (names can vary greatly) also keeping one eye on the Guidelines of the Italian Data Protection Authority.

3) What if policies do not exist?

Obviously rules can be found elsewhere, for example in the contract. In this case work tools are only supposed to be entrusted to the employee for professional use.

4) Could professional policies provide for the use of Facebook for personal reasons?

Generally, yes. An employer’s choices can vary widely. The employer may also exercise a choice of leniency.

5) What if the employer is a public body?

In such cases the matter is rather more delicate. We have to remember that the criminal code punishes the crime of embezzlement.

6) Are workers in any way limited when they express thoughts on Facebook regarding their work or employer?

They are limited by norms of a general nature which might be applied in the same way to Facebook as to any other circumstances, and which could be, for example, the duty of professional loyalty, the principle of fairness, the obligation of non-competition, the norms of personal data protection, and also the respect of honour and of other people’s reputations.

7) Are employers allowed to use information about their workers found on Facebook?

If it is found through legal channels through Facebook’s particular chain of consent, then yes.

8) Should information found on Facebook be considered as private?

It depends on the meaning of “private”. Public information on Facebook is directly or indirectly visible to authorized individuals (for example, friends, friends of friends) and so potentially posted to many individuals.

9) Can information on Facebook only be used for certain purposes (e.g. personal) and not for others (e.g professional)?

Only if this limitation is expressly stated. At the moment it is not possible.

10) Do we need an ad hoc law?

Germany is thinking in this direction. Personally I am still against special laws for every technological innovation. What we need is greater awareness.


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