COMPUTER CRIMES
Revenge porn: dissemination of the material must be carried out only by the person who took the footage or misappropriated it.
The dispute under review concerns the crime of unlawful dissemination of sexually explicit images or videos under Article 612-ter of the Criminal Code, commonly referred to using the expression "revenge porn."
Titius appeals in cassation, censuring the judgment under appeal, arguing that the dissemination "must take place without the consent of the persons represented and must concern sexually explicit materials intended to remain private, but, as repeatedly noted, consensually made, so much so that the conduct can only be carried out by the person who operated the filming or by the person who wrongfully took possession of it, removing it from the person who had made it."
In the case at hand, on the other hand, the filming had been the result of environmental wiretapping carried out by the prosecutor's office without the full knowledge of the subjects filmed, so that, subject to the violation of the principle of legality and taxability, it cannot be considered in the same way as the material indicated by the first and third paragraphs of Article 612-ter of the Criminal Code.
In the field of legitimacy, the Supreme Court of Cassation, Criminal Sect. V, in its ruling of June 20, 2024, No. 24379 first of all traces the phenomenon of "revenge porn," to which our Legislature responded with the introduction in the Criminal Code of Article 612-ter, approved by an amendment to Law No. 69/2019, the so-called "Red Code."
As emerges from the normative text, "the norm not only requires the absence of consent, but also that the images or videos are 'intended to remain private,' as if, it has been observed in doctrine, even before the absence of consent to disclosure, there is the rupture of a pactum fiduciae between two individuals, presumably linked by a relationship, such as to have imprinted a precise destination to the contents, later disregarded by one of the two."
As for the ground of appeal specified above, the Supreme Court finds it well-founded.
By virtue of the hermeneutic evolution of the conduct and the latitude of the syntagma revenge porn, the Court considers that the incriminated conduct is broader than that carried out solely in the context of a previous romantic relationship, in the context of which a different use of the material originally intended to remain circumscribed and confidential occurred. The rubric of the rule, which outlines the criminal relevance of the unlawful dissemination of sexually explicit images and videos, without any reference to a specific context of a prior romantic relationship, lends support to this orientation.
That being said, the Supreme Court reiterates the two requirements that must both exist simultaneously: lack of consent and private purpose, understood as the formation of the material by the same individuals depicted in it. Therefore, it is necessary that the perpetrator of the conduct of dissemination of the said material be the one who had previously made the said material, or had taken possession of it by misappropriating it.
These requirements do not appear to be met in the present case, since the perpetrator is a person entirely different from the one who had made the material, nor does it appear that he had appropriated it by misappropriating it.
For these reasons, the Supreme Court upholds the appeal.
Titius appeals in cassation, censuring the judgment under appeal, arguing that the dissemination "must take place without the consent of the persons represented and must concern sexually explicit materials intended to remain private, but, as repeatedly noted, consensually made, so much so that the conduct can only be carried out by the person who operated the filming or by the person who wrongfully took possession of it, removing it from the person who had made it."
In the case at hand, on the other hand, the filming had been the result of environmental wiretapping carried out by the prosecutor's office without the full knowledge of the subjects filmed, so that, subject to the violation of the principle of legality and taxability, it cannot be considered in the same way as the material indicated by the first and third paragraphs of Article 612-ter of the Criminal Code.
In the field of legitimacy, the Supreme Court of Cassation, Criminal Sect. V, in its ruling of June 20, 2024, No. 24379 first of all traces the phenomenon of "revenge porn," to which our Legislature responded with the introduction in the Criminal Code of Article 612-ter, approved by an amendment to Law No. 69/2019, the so-called "Red Code."
As emerges from the normative text, "the norm not only requires the absence of consent, but also that the images or videos are 'intended to remain private,' as if, it has been observed in doctrine, even before the absence of consent to disclosure, there is the rupture of a pactum fiduciae between two individuals, presumably linked by a relationship, such as to have imprinted a precise destination to the contents, later disregarded by one of the two."
As for the ground of appeal specified above, the Supreme Court finds it well-founded.
By virtue of the hermeneutic evolution of the conduct and the latitude of the syntagma revenge porn, the Court considers that the incriminated conduct is broader than that carried out solely in the context of a previous romantic relationship, in the context of which a different use of the material originally intended to remain circumscribed and confidential occurred. The rubric of the rule, which outlines the criminal relevance of the unlawful dissemination of sexually explicit images and videos, without any reference to a specific context of a prior romantic relationship, lends support to this orientation.
That being said, the Supreme Court reiterates the two requirements that must both exist simultaneously: lack of consent and private purpose, understood as the formation of the material by the same individuals depicted in it. Therefore, it is necessary that the perpetrator of the conduct of dissemination of the said material be the one who had previously made the said material, or had taken possession of it by misappropriating it.
These requirements do not appear to be met in the present case, since the perpetrator is a person entirely different from the one who had made the material, nor does it appear that he had appropriated it by misappropriating it.
For these reasons, the Supreme Court upholds the appeal.
