Text messages, whatsapp voicemails and written messages, as well as those from various other social networks are recorded on our mobile phones.  The same mobile phones - like personal computers or other devices - can effortlessly be used to make recordings of phone calls, video calls or meetings.

In my work, I am frequently asked the question whether doing so is lawful and whether it can count as evidence.

The answer is unfortunately not unequivocal, both because the legislation has not been updated to take these new tools into account and because the courts give different decisions in different cases. It is really difficult to get one's bearings.

In an ongoing civil trial, I was able to use as evidence the whatsapp messages exchanged by my client with the opposing party, because the opposing lawyer did not dispute them in time.

The Criminal Court of Cassation, however, in a recent judgment, confirming previous rulings, established that "...whatsApp messages and text messages stored in the memory of a mobile phone are in the nature of documents within the meaning of Article 234 of the Code of Criminal Procedure, and their acquisition by mere photographic reproduction is legitimate...".

Despite this, many judges, applying other rules, say that each judge can freely evaluate them.

Not to mention the privacy aspects. Because recording a conversation - especially relating to a work or business relationship - may also be considered valid evidence by the judge in a trial, but it could still constitute a violation of the GDPR and thus expose whoever makes the recording to significant fines. On this point, the Italian Privacy Authority would be inclined to allow it, but judges often think otherwise.

In conclusion, anyone who intentionally or social messaging captures audio or photographic messages, in any format, should ask their lawyer for an opinion on the individual case in order to make the best use of it.

Last update January 2023

This is a subject that was much talked about with Legislative Decree No. 14 of 2019, i.e. the new Code of Business Crisis and Insolvency, at the time of the introduction of the relevant law, which only partially came into force in the same year.

But now there is something new.

As of 15 July 2022, company directors are obliged to equip themselves with tools to prevent and resolve any signs of danger to the company's continuity, in essence to prevent a possible business crisis.

Already since 2019, the new Article 2086 of the Civil Code provided that 'the entrepreneur has the duty to set up an organisational, administrative and accounting structure appropriate to the nature and size of the business, also with a view to the timely detection of the crisis of the business and the loss of business continuity, as well as to take action without delay for the adoption and implementation of one of the instruments provided by the law for overcoming the crisis and the recovery of business continuity'.

Since 15 July, these instruments must objectively achieve specific results and in particular

- ascertain any imbalances of a financial or economic nature;

- verify the sustainability of debts and the prospects of business continuity for at least the next 12 months ;

- obtain the information needed for the check list on the possible pursuit of reorganisation, provided for by the same law.

Specifically, short-term payroll and social security debts, debts to suppliers and to banks and other financial intermediaries, and finally tax debts must be constantly monitored.

The consequence of the entrepreneur's non-performance is an increase in his liability, but above all the loss of the exclusion of his liability in the case of an LLC or joint-stock company.

Those who had taken action in 2019 must therefore now supplement the work done; those who have not yet done so, must equip themselves as soon as possible with these organisational and compliance tools.

last update August 2022

In order to ensure greater transparency and legality in the economic system, there is a need to identify who are the beneficial owners of companies and other entities, such as foundations, trusts and associations. Above all, there is a need to combat organised crime, money laundering, but also those who commit other serious crimes, such as terrorism. The Register of Beneficial Owners has been introduced also in Italy, the founding regulation of which came into force a few weeks ago on 9.6.2022

All these subjects will have to give the necessary information to the chambers of commerce by electronically sending a self-declaration. All subsequent changes to the beneficial owner must also be reported.

The data of the person in question, his share in the company and the powers concretely exercised must be communicated, for legal persons, whereas the person's tax code and registered office are owed for other entities.

The sanctions for non-compliance are currently limited, but it is well possible that they will be reconsidered over time, to make the rule more effective.

A privacy issue arises, however, regarding the accessibility of data. First of all, the authorities and those obliged to verify actual ownership, such as lawyers, insurance companies and banks, will have free access, albeit regulated by special agreement with the chamber of commerce. But third parties may also request to have a whole set of information, i.e. the surname, month and year of birth, country of residence and citizenship of the beneficial owner and how he qualifies as such. At least in the latter case, however, the beneficial owner may object to the disclosure of the data, although it is not a judge but the chamber of commerce that will actually decide.

This is therefore an important but also delicate instrument; it will be important to see how it is used in practice in the first months of the Register's validity and also to understand how it can be used by everyone, especially businesses and professionals .

 updated July 2022