Court of Cassation, 12 November 2021, no. 33809
The data contained in the company PC are, to all intents and purposes, company assets. This means that their removal implies a disciplinary conduct relevant with commission of civil and criminal offenses such as to lead, legitimately, to a claim for damages.
Court of Cassation, no. 33809/2021
In this case, the company sued its former employee who resigned, . in order to obtain a sentence ordering him to pay compensation for the damages to its image and professional reputation suffered as a result of the breach of the obligation of loyalty, by virtue of a series of conducts allegedly attributable to him
To support this claim, the company reported documentation, data and information contained in the company equipment (in particular, in the PC) given to the manager and forming part of the company's assets, which had been fraudulently deleted by the manager before being returned.
The Court upheld the company's appeal, whilst the Court of Appeal, deeming the charges to be without proof, rejected the company's request.
In particular, according to the Court:«it were inadmissible the conversations illegally acquired by the company, once the employee had returned the company computer, on his private Skype account, in violation of the secrecy of correspondence (including computer or telematic correspondence) and also of the employee's personal password, as the company had never decided to provide a company password, despite the use of the Skype application for work activities: since such conduct, without the consent of the interested party, could not be justified under Leg. Legislative Decree no. 196 of 2003, art. 24 (Privacy Code)»
The Court of Cassation, with the sentence under review, accepted the appeal presented by the Company and set aside the sentence of the Court of Appeal.
In particular, the Supreme Court first of all points out that even the deletion of data and files from the hard disk of the company's computer, which does not exclude the possibility of recovery except with the use of special procedures, even if costly, integrates the objective elements of the crime of computer damage referred to in art. 635 bis penal code.
For the Court:«the production in court of documents containing personal data is always allowed when it is necessary to exercise one's right of defence, even in the absence of the consent of the owner and regardless of the manner in which such data was acquired: however, this right to defend oneself in court, using the personal data of others, must be exercised in compliance with the duties of correctness, relevance and non-excessiveness provided for by L. No 675 of 1996, art. 9, lett. a) and d), so that the legitimacy of production is assessed on the basis of the balance between the content of the data used, which is related to the degree of confidentiality, with the needs of defense»
According to the Court of cassation, the Court of appeal«has failed to balance the rights of defense and protection of confidentiality, since, in the processing of personal data, the right of defense in court prevails over that of inviolability of correspondence, allowing L. No 196 of 2003, art. 24, lett. f), to disregard the consent of the interested party for the processing of personal data, when it is necessary for the protection of the exercise of a right in court, provided that the data are processed exclusively for that purpose and for the period strictly necessary for their pursuit (Cass. September 20, 2013, no. 21612)»
The cassation finally stated that«the activity of data recovery, deleted by the manager before the return of the computer he was granted to work, that represents corporate assets, after the termination of the employment relationship, was carried out by the company in function of the compensation judgment, on the assumption of the destruction by the employee of corporate assets, such as precisely those stored in the personal computer: conduct integral violation of the duties of loyalty and diligence, such as to constitute just cause for dismissal (Cass May 14, 2015, no. 9900)»
In light of the above, the Court upholds the appeal of the company, condemning the former employee to compensation