The Court of Cassation, with judgment no. 1269 filed on January 13, 2025, addressed the issue of acquiring messages exchanged via instant messaging applications such as WhatsApp in criminal proceedings.

Case context

During a traffic stop, the police found drugs in an individual's car. Subsequently, with the suspect's consent, the officers acquired screenshots of WhatsApp conversations on his cell phone, believing they could constitute relevant evidence.

Court ruling

The Supreme Court has ruled that such chats must be considered private correspondence and, therefore, are protected by Article 15 of the Italian Constitution, which safeguards the freedom and secrecy of communications.

Consequently, the acquisition of these messages by the judicial police requires a reasoned order from the judicial authority and cannot occur freely, not even with the consent of the suspect.

Key principles highlighted by the ruling

1. Constitutional Protection of Correspondence: digital communications, such as WhatsApp chats, fall under the notion of correspondence and enjoy the same constitutional protection provided for traditional communications.
2. Necessity of Judicial Order: to acquire and use such communications as evidence in a criminal trial, a reasoned order from the judicial authority is essential, similar to what is required for the interception of phone calls.
3. Irrelevance of the Suspect's Consent: the simple consent of the suspect is not sufficient to legitimize the acquisition of these communications by the judicial police without the necessary procedural safeguards.

Implications of the decision

This ruling represents a significant step forward in the protection of privacy in the digital age, establishing that private communications stored on electronic devices cannot be acquired and used in criminal proceedings without respecting the guarantees provided by the Constitution and the code of criminal procedure.

In summary, the Court of Cassation clarified that the acquisition of messages from instant messaging applications requires careful adherence to the rules protecting the confidentiality of correspondence, strengthening the protection of individual rights in the context of modern digital communications.