The illegal environmental interception and unlawful interference in private life are two distinct concepts, but often confused even by professionals.

Let's see the differences.

Environmental interception

Interception with possible recording, of a conversation in which the person intercepting is not present, wherever it takes place, even in a public place.

To identify the rule that defines such conduct as a crime, it is necessary to develop a legal analysis that is not straightforward:

  • Art. 15 of the Constitution

The freedom and secrecy of correspondence and any other form of communication are inviolable. Their limitation can occur only by a reasoned act of the judicial authority with the guarantees established by law.

  • Article 617 bis of the Penal Code.

Anyone, outside the cases permitted by law [c.p.p. 266-271], in order to gain knowledge of a communication or a telephone or telegraphic conversation between other people or in any case not directed to him, or to prevent or interrupt it, procures, possesses, produces, reproduces, disseminates, imports, communicates, delivers, makes available to others in any other way, or installs devices, instruments, parts of devices or instruments suitable for intercepting, preventing or interrupting telegraphic or telephone communications or conversations between other people is punished with imprisonment from one to four years.
The penalty is imprisonment from one to five years if the act is committed to the detriment of a public official in the exercise or because of his functions or by a public official or a person in charge of a public service with abuse of powers or with violation of the duties inherent to the function or service or by someone who also unlawfully practices the profession of private investigator.

  • art. 617 c.p.

Anyone who, fraudulently, becomes aware of a communication or conversation, by telephone or telegraph, between other people or otherwise not directed to them, or interrupts or prevents them, is punished with imprisonment from one year and six months to five years [c.p.p. 266-271].
Unless the act constitutes a more serious crime, the same penalty applies to anyone who reveals, by any means of public information, in whole or in part, the content of the communications or conversations indicated in the first part of this article.
The crimes are punishable upon complaint by the offended person; however, proceedings are initiated ex officio and the penalty is imprisonment from three to eight years if the act is committed to the detriment of a public official or a person in charge of a public service in the exercise or because of the functions or service, or by a public official or a person in charge of a public service with abuse of powers or violation of duties inherent to the function or service, or by anyone who also unlawfully practices the profession of private investigator.

  • art. 623 bis penal code

The provisions contained in this section, relating to telegraphic, telephone, computer, or telematic communications and conversations, apply to any other transmission of sounds, images, or other data over a distance.

  • Cass. pen. no. 3061/2010 regarding art. 623 bis of the penal code.

The offense of installation of equipment intended to intercept or impede telegraphic or telephone communications or conversations (art. 617 bis and 623 bis penal code) is constituted by the conduct of someone who installs a camera - hiding it inside a plastic box, attaching it to a light pole, and positioning it a few meters above the ground - with the lens aimed at the entrance of a building, in order to illicitly capture images, or communications and conversations of third parties. Nor is the actual interception or recording of others' behaviors or communications relevant for the configurability of the offense, as only the installation activity is considered, not the subsequent interception or impediment of others' communications, which is relevant only as the purpose of the conduct, with the consequence that the offense is consummated even if the installed devices, outside the hypothesis of their absolute ineffectiveness, have not been activated or, indeed, have not functioned.

Unlawful Interference in Private Life

Crime committed by those who obtain news or images related to private life, using audio or video-photographic recording devices, inside homes, their appurtenances, or any place, even intended for work or professional activities, where acts of private life are carried out not occasionally, and which is not open to the public nor accessible to third parties without the owner's consent (changing room, back of the store, office, etc.)

Regulatory references:

  • Art. 615 bis of the Penal Code.

anyone who, by using visual or sound recording tools, unlawfully obtains news or images pertaining to private life taking place in the places indicated in article 614, is punished with imprisonment from six months to four years.
The same penalty applies, unless the act constitutes a more serious crime, to anyone who reveals or disseminates, by any means of public information, the news or images obtained in the ways indicated in the first part of this article.
The crimes are punishable upon complaint by the offended person; however, proceedings are initiated ex officio and the penalty is imprisonment from one to five years if the act is committed by a public official or by a person in charge of a public service, with abuse of powers or with violation of duties inherent to the function or service, or by anyone who also unlawfully practices the profession of private investigator.

  • Art. 614 of the Penal Code for the identification of places of private residence

Anyone who enters another person's dwelling, or another place of private residence, or their appurtenances, against the expressed or implied will of the person who has the right to exclude them, or enters clandestinely or by deception, is punished with imprisonment from one to four years [615] […]

  • Criminal Court of Cassation United Sections No. 31345 Year 2017 for further specification of places of private residence

<<For the purposes of the offense under Article 624-bis of the Penal Code, workplaces do not fall under the notion of private residence, unless the act occurred within an area reserved for the private sphere of the victim. The notion of private residence under Article 624-bis of the Penal Code exclusively includes places, even those intended for work or professional activities, where acts of private life are carried out not occasionally, and that are not open to the public nor accessible to third parties without the owner's consent.>>

SUMMARY

No one can intercept conversations of others anywhere, otherwise it constitutes an unauthorized environmental interception. The only exception is granted to the Judicial Authority based on articles 266 to 271 of the Code of Criminal Procedure.

No one can obtain information through not only audio but also video photographic systems about the private life inside someone else's home.


These prohibitions apply to everyone, especially to Private Investigators; in fact, the regulations provide for harsher penalties if the offenses are committed by private investigators, even unauthorized ones.

The audio recording of a conversation in which one is a participant can be legitimately made without informing third parties, provided that the conversation does not take place within someone else's private residence and that the recording is used only as evidence to be submitted in court, with the prohibition of disseminating it.

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