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ISSN 2611-8858

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Privacy

News From the UK: Facial Recognition Approved by the High Court of Justice

This paper analyses a recent judgment by the High Court of Justice of England and Wales, described by many commentators as the first judicial decision worldwide to deal analytically with the issue of compatibility between the usage of facial recognition tools by law enforcement on the one hand and the right to privacy on the other. Although the judgment has not solved the tensions between supporters and opponents of facial recognition systems in the UK, it has raised issues of great interest even for the Italian legal system, where such tools are available to law enforcement agencies but are not sufficiently regulated by law.

Criminal Law and ‘Fascism Cult’

The paper critically analyses the main literature and case-law on the repression of neofascism, following three lines of investigation. Firstly, in light of the most recent case-law, attention is focused on the criminal relevance of usage of fascist symbols and rituals under art. 5 of the Law 645/1952 (so-called ‘Scelba Act’) or under art. 2 of the Law Decree 122/1993 (so-called ‘Mancino Act’): in order to draw a line between the two offences, the first part of the paper focuses on the harmfulness thereto. Furthermore, the case-law on art. 5 Law 645/1952 triggers a broader reflection on the inchoate nature of the offence at hand, in light of the Constitutional Court precedents on the topic; the controversial case-law shows how difficult is for the judge assessing the actual endangerment of a given misconduct, while conceiving such crime as malum quia prohibitum not necessarily implies a violation of the free thought liberty enshrined in art. 21 of the Italian Constitution. Finally, the inchoate nature of such offences requires to reflect on their relevance and, consequently, the adequacy and need of criminalizing neofascist activities.

Limits to Criminalization of Unlawful Data Processing in the Digital World

The constant exchange of data and information in the world of the web has imposed a reinterpretation of the classic paradigms related to the so-called privacy as a legal interest. The crime of unlawful processing of personal data, as per art. 167 of the Italian Privacy Code (Legislative Decree 196/2003), is emblematic in this sense, and has been emended by numerous corrective measures in order to adapt it to the modern and changing needs of legal protection. The analysis carried out here therefore reflects on the recent reform (Legislative Decree 101/2018) which tries to recover the offensiveness of the criminal type through the formulation of a result crime whose offence is focused on the harm to the person concerned: however, in an apparently irreconcilable way, a specific intent of damage is maintained, which overlaps with the material result achieved by the agent. Finally, the paper tries to demonstrate how a new legal interest with a public nature is emerging, that is, the system of protection of personal data, the protection of which is entrusted to Articles 167-bis and 167-ter.

The Sanctioning System for Privacy-Related Infringements from the Supranational Ne Bis In Idem and the Italian Constitution Perspectives

The paper aims to analyse the sanctioning system for privacy-related infringements, as recently amended both at the EU and the domestic level. Considering the administrative and criminal provisions currently provided for by the GDPR and the Italian Privacy Code, some critical issues will be highlighted with respect to the wording of the said provisions, whose interpretation is often difficult. The Italian lawmaker seems to have adopted the ‘double track’ sanctioning system: in the second part of the paper will assess the compatibility of the said system with the supranational principle of ne bis in idem. Finally, some reflections will be devoted to the rationale of the repeated option for the ‘double track’ sanctioning system, trying to find a way out from it through the ‘specialty’ principle established under art. 9 of Law 689/1981.

The Multiplication of Responsibilities in the Personal Data Protection Area: Criminal Law Implications of the GDPR

The attribution of responsibility as a ‘guarantor’ in the area of personal data protection is a relatively unknown issue, both for the scholars and the case-law. The said topic, however, deserves to be (re-)investigated after the entry into force of the EU Regulation on Personal Data Protection, as implemented in Italy by the Legislative Decree no. 101/2018. The legal architecture itself focuses on risk management and accountability of those labelled as ‘guarantors’ of data integrity and security of networks. This paper aims to reconstruct the notion of ‘guarantor’ in the area of data protection as well as assessing the relationships among ‘guarantors’.

The Protection of Trade Secret under Italian Criminal Law. Between Needs for Adequacy and Options for Rationalization

The paper focuses on the Italian criminal provisions regarding trade secret. It aims at analyzing the consistency between the criminal law system (recently reformed by D. Lgs. N. 63/2018) and the modern needs of data-driven economy. D. Lgs. n. 63/2018 modified the structure and the object of protection of art. 623 c.p. and it also filled the gap between the criminal law system and the civil law protection (art. 98 industrial property code). Problems regarding the compatibility of the different forms of protection may arise from this reform, as underlined by the case law of the ECHR too. Notwithstanding the risks related to the overlapping of the two regulations, the paper tries to differentiate the notion of trade secret of the two branches of law in order to demonstrate the need of the criminal protection of trade secret.

Il principio di proporzionalità nell’era del controllo tecnologico e le sue implicazioni processuali rispetto ai nuovi mezzi di ricerca della prova

The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.

The new discipline of the computer sensor between investigative needs and protection of fundamental rights From “scurato” judgment to interception reform

The new face of organised crime has got the traditional systems of investigations into troubles, highlighting investigation inability of judicial authorities to combat effectively drug trade and spread of child sexual abuse material on the internet. Only through computer investigation, investigative bodies are able to seek and ensure the probative data. The new investigation horizon is interception of communications among present (and search) through computer collector. That is a system which permits image and sound collection remotely through forwarding of a malware on a target device. The legislator has been waiting for more than ten years for regulating the use of the new investigative instrument by the introduction of the Legislative Decree December 29 th 2017 n. 216. This collects largely the proposal of “Scurato” judgment and numerous suggestions offered from the doctrine in the last years. The examining Judge is responsible to recover the real control function on the investigative project hypothesized by the prosecutor in order to safeguard the constitutional values involved in the use of the mean.

Freedom of Information and Criminal Procedure According to the Jurisprudence of Italian Constitutional Court and the European Court of Human Rights: Problems and Perspectives

The relationships between freedom of information and fair course of justice, with particular regard to criminal trial, are issues nowadays more and more relevant, due to degenerative phenomena of "trial by media". Constitutional studies need a clear consideration of the need to make balance between principles and involved values, as proved by the difficulty of writing a proper "Charter of relationships between judiciary and media". In this sense, the analysis of the decisions of the Italian Constitutional Court and the European Court of Human Rights offers many insights – even when it is necessary to innovate legislation. The recent European Directive (EU) 2016/343, which should be implemented within 1 June 2018, acknowledges several orientations coming from case-law of ECHR and confirms an extensive interpretation of the 'presumption of innocence', shifting-away from mere procedural safeguard to constitutional freedom, i.e. as right to be considered innocent unless guilty is legally proven.

Criminal Justice in the Prism of Information Rules of Procedure and Deforming Refractions

The article provides a critical illustration of the rules governing the confidentiality and limits of the publication of criminal proceedings. Recognition is conducted in the light of the problems that the Italian experience has now emerged. The delicate problems associated with the interplay of interests at stake (individual confidentiality, protection of inquiry, procedural fairness) make up the plot. The final paragraph is devoted to a synthetic design of imaginable solutions by trying to overcome the current, unsatisfactory practices.