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The Italian Supreme Court held that the delivery of spams does not breach Section 660 (harassment) of the Italian criminal code that sanctions with the imprisonment up to six months or with a fine up to € 516.46 whoever, in a public place or in a place open to the public, or by means of the telephone, for insistency or other blameworthy reasons, harasses or bothers someone.
It is interesting to see that on the same case, The Court of First Instance had taken a different view holding that Section 660 was an “open” provision to be interpreted in accordance with the technical developments of communication technologies. Therefore, even though the harassment was not made by means of the telephone, Section 660 would be applicable to the case. On the contrary, the Supreme Court rejected the arguments of the Court of First Instance stating that the Italian criminal code cannot be interpreted by analogy extending to email messages the regime applicable to phone calls. Also, the Court held that the delivery of an email message would constitute an “asynchronous” form of communication which allows the recipient to decide whether or not he wants to read the message. In other words, the action of the sender would only result in the storage of a text document on the server of the e-mail service provider; then the recipient would be free to access his/her email account and read or delete the message.
This is a very interesting decision but in my view it has a very limited scope. Indeed, the Supreme Court did not cover the data protection law issues which may arise from the delivery of emails without having obtained the prior consent from the relevant data subject. Indeed, according to the Italian Data Protection Code, such conduct is subject to fines up to € 300,000 (doubled in the most relevant cases) and, if the criminal courts deem that the breach occurred to gain profit or to cause a damage to a data subject (e.g. to harass someone), with the imprisonment up to 18 months.
Do you want to discuss the implications of the above matter on your business? Feel free to contact me, Giulio Coraggio.
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