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13 April 2016
The Supreme Court recently issued a decision (8631/16) in a case regarding an employee's violation of Article 615ter of the Penal Code after he had resigned. Article 615ter penalises anyone who gains unauthorised access to computer or telecommunications systems protected by security measures or who maintains access against the express or implied permission of the party that has the right to block access to it. Under the law, the offender will be sentenced to imprisonment not exceeding three years. The court found the accused guilty of the offences as charged.
The case involved an employee who, after giving notice of his resignation to his employer, was found using a colleague's internet connection to copy company data onto a hard disk. The trial court and the appeal court found the employee guilty of unauthorised access of a computer or telecommunications system under Article 615ter of the Penal Code. The employee filed the Supreme Court case on the grounds that Article 615ter does not apply when an accused party acted after having received authorisation and acted within its limits.
The Supreme Court annulled the penal effects of the sentence as the crime was statute barred. However, it found the accused guilty of the offences as charged. The court underlined that the sentence was based on the fact that the defendant had accessed the company's computer system after he had resigned and was therefore unauthorised to do so. The fact that the employee knew the password to gain access to his former employer's computer system did not authorise him to access the system.
The Supreme Court (as in United Section 4694/2012) ruled that the aim which motivated the defendant to access his employer's computer system was irrelevant. Further, the court noted that a crime cannot be ignored because of the temporary suspension of the effects of resignation introduced under Article 4, Paragraphs 17 to 22 of Law 92/2012 (the so-called Fornero reform). The temporary suspension of the effects of resignation cannot renew an employment relationship that has been terminated. This clarification also applies under Article 26 of the Jobs Act (Decree-Law 151/2015).
The issue of defining employee access to business tools is a fundamental component of the new labour law system following the changes to Article 4 of the Workers' Statute (for further details please see "First impressions of recent labour law reforms"). Therefore, it is crucial for employers to establish corporate policies and rules governing the use of work tools.
For further information on this topic please contact Andrea Stanchi or Annamaria Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (firstname.lastname@example.org or email@example.com).
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