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Recordings of Company Interviews in Order to Pre-Establish Documentary Evidence. The Yes of the Supreme Court Closes the Debate

In a recent sentence of the Supreme Court (n.28398 of 09/29/2022) , complex under many aspects, there is a highly topical topic that has found a precise answer, even if with a not very articulated motivation on the part of ermines, which therefore requires a preamble and some clarifying glosses. By reducing the present case to its essentials, the judgment of the appealed Court of Appeal had deemed inadmissible the use in court of the recording of telephone conversations between a worker and her direct superior which, in hypothesis, would have demonstrated the retaliatory intent of the dismissal subsequently imposed by the company.

The Court of Appeal held that the recordings were " abusive, illegitimately captured and recorded " and therefore unfit to constitute a source of evidence in civil proceedings. The Cassation reforms the sentence, censuring it because the decision was issued without in any way investigating the recurrence of the requisites to which the previous jurisprudence of legitimacy subordinates the legitimacy for the purposes of proof of the recordings of conversations between those present and without taking on the reconciliation of competitors fundamental rights involved, all the more necessary fulfilments in relation to the difficulties in fulfilling the burden of proof weighing on the worker who denounces the retaliation of the dismissal notified to him.

A summary of thejurisprudence of legitimacy prior to the sentence in question is necessary to note that the Supreme Court has already, on several occasions, stated that the recording of a conversation between those present can constitute a source of evidence within the limits and conditions specifically identified, ruling in particular:
a ) that the recording of a conversation can constitute a source of evidence, pursuant to art. 2712 of the civil code, if the person against whom the recording is produced does not contest that the conversation actually took place , nor that he had the content resulting from the tape;
b) that at least one of the parties, including the conversation being held, is a party to the dispute ; and
c) that thedisclaimer may be objected in compliance with the procedural preclusions referred to in Articles 167 and 183 cpc and that it must therefore be clear, detailed and explicit and materialize in the attachment of elements attesting to the non-correspondence between the factual reality and that reproduced ( Cass. N. 1250 of 2018, n. 5259 of 2017 and n. 27424 of 2014 ).

The crux of the question addressed by the sentence in question is whether the general principles peacefully acknowledged by the jurisprudence find some limitation in the dynamics of the employment relationship , which is characterized by the fiduciary bond between worker and employer. The latter, that is, relies not only on the employee's ability to fulfill the work obligation, but also on his ability to share and keep confidential the information exchanged during the relationship , which is functional to the production and / or commercial needs of the employee. ' business.

However, when these requirements are not present (and in the case in question the applicant company had not attached that the interview recorded had as its subject industrial secrets or the confidential know-how of the company), the registration must be considered lawful ., provided that it was carried out by a person who was the protagonist of the conversation, as functional to the acquisition of an exculpatory evidence in anticipation of a disciplinary procedure (in this case expulsive procedure, but the principle can be applied to any disciplinary sanctioning procedure).

In essence, this is an evaluation made a posteriori, i.e. at the time of production in court, of a behavior carried out outside the proceeding , but in anticipation of the same and inherent in the merits of a dispute , even if at the time of registration. only potential. In fact, on several occasions the Court of Cassation has explicitly stated that "the right of defense is not limited to pure and simple trial venue, extending to all those activities aimed at acquiring evidence that can be used in it, even before the dispute has been formally established by summons or appeal "( Cass. 29 December 2014, n. Thus framed the problem under discussion ,

it is necessary to make a rundown of the numerous rules from which it is necessary to start in order to fully understand the case and to be able to go into the solution given by the Court of Cassation. They are the following:

• Article 15 of the Constitution , according to which " the freedom and secrecy of correspondence and any other form of communication are inviolable"and can be limited only with a motivated act of the judicial authority.

With a long and in-depth sentence, the United Sections of the Cassation have specified that" the constitutional protection of the right to secrecy of communications does not also extend to an autonomous right to confidentiality. The latter is constitutionally protected only medically, as a component of personal freedom, seen in its aspect of moral freedom, of the freedom of domicile, in its aspect of the right of the individual to have their own spatially delimited private sphere, and of freedom and secrecy of correspondence and any form of communication. Basically, confidentiality is constitutionally guaranteed to the extent that it affects certain rights of freedom . "
The disclosure of the content of the interview by the person who recorded it is therefore not to be considered inhibited by art. 15 of the Constitution, given that the right to confidentiality is not a constitutionally protected value and yields to the need for training and the conservation of a means of proof . The right to confidentiality, the Supreme Court specifies in the same sentence, "it does not live in the legal system on the basis of a generalized forecast, but it is the legislator who from time to time disposes of its genesis and protection. The Constituent Assembly has simply taken care to guarantee the interlocutors from the arbitrary and fraudulent intrusion of third parties. Once the relationship between the communicator and the recipient has ended, there remains only a phenomenon of dissemination of the news by those who legitimately acquired it, who may, unless a specific law prohibits them, communicate the received news to third parties. and, more specifically, as part of the trial, he will be able to testify as a witness on what has been reported to him and / or deliver the recorded tape ";

• Article 2712 of the Italian Civil Code, which establishes that the phonographic recording of an interview between people present falls within the genus of mechanical reproductions , therefore evidence that is in principle admissible in civil proceedings;

• art. 8 of the European Convention on Human Rights , according to which " everyone has the right to respect for their private and family life " and " there can be no interference by a public authority unless such interference is provided for by law " and constitutes a measure necessary only for specific needs;

• EU Regulation 2016/679 ("GDPR") and Legislative Decree 30 June 2003, n. 196 (" Privacy Code"), according to which the processing of personal data must be understood as any operation or set of operations, carried out even without the aid of electronic tools, concerning the collection, registration, organization, storage, consultation, processing, modification, selection, extraction, comparison, use, interconnection, blocking, communication, dissemination, cancellation and destruction of data, even if not registered in a database.
For " given"any information relating to a natural person, identified or identifiable, even indirectly, by reference to any other information, including a personal identification number and thus, therefore, any information that can provide details on the characteristics, habits, style of life, personal relationships, sexual orientation, economic situation, marital
status , state of health etc. of the natural person but also and above all the images and the voice of the natural person . its acquisition requires, in general and with the exceptions that we will see, the release of a noticeaccording to the privacy legislation and the acquisition of the owner's consent;

• art. 24 lett. f) of the Privacy Code , applicable ratione temporis to the present case but then repealed by Legislative Decree no. lgs. 10 August 2018, n. 101 [1], which allows to disregard the consent of the interested party for the processing of personal data when the latter is necessary to assert or defend a right in court, provided that the data are processed exclusively for this purpose and for the period strictly necessary for their pursuit. It is a question, as is evident, of the provision of a derogation which renders the activity, if carried out in compliance with the conditions set out therein, in itself already upstream lawful. In this case, and therefore where the processing of personal data carried out in the absence of the consent of the data owner is strictly instrumental to the judicial protection of a right by the person who carries out such processing and therefore is aimed at exercising the defense prerogatives , the prerequisite of the incriminating conduct provided for by art. 167 of the Privacy Code. The right to privacy cannot be invoked to support the illegitimacy of wiretapping (both of a conversation and of a phone call): confidentiality obviously does not operate when the same holder of the relative right to renounce it, as in the case in which you speak with others . The only required condition is that the data itself be processed exclusively for these purposes and for the period strictly necessary for their pursuit [2];

• art. 2-decies of the Privacy Code , as amended by d. lgs. 10 August 2018, n. 101, of adaptation of the national legislation to the provisions of the GDPR, which provides that "Personal data processed in violation of the relevant regulations regarding the processing of personal data cannot be used, except for the provisions of article 160-bis " . This is not a decisive rule because the express reference to the provisions of art . 160-bis refers, by virtue of it, to " relevant procedural provisions " the discipline of the validity, efficacy and usability in judicial proceedings of deeds, documents and provisions based on the processing of personal data that does not comply with the provisions of the law or Regulation. It is a pity that in the code of civil procedure there is no trace of such " pertinent procedural provisions", while in the criminal trial article 191, paragraph 1, cpp, establishes the principle of the unusability of the evidence taken" in violation of the prohibitions established by law ";

• article 93, paragraph 1, law 22 April 1941 , n. 633 (Copyright law) which, in terms of documents constituting correspondence or other people's letters, establishes that "when they are confidential or refer to the intimacy of private life, they cannot be reproduced or in any way brought to the knowledge of the public without the consent of the author, and in the case of correspondence and letters, also of the addressee " ; the subsequent art.94 derogation from the need for the aforementioned consent "when knowledge of the writing is required for the purposes of a civil or criminal trial or for the need to defend personal or family honor or reputation ";

• art. 615 bis of the Criminal Code , which punishes the conduct of "anyone who, through the use of visual or sound recording tools, improperly procures information or images relating to private life taking place in the places indicated in art. 614 of the Italian Criminal Code " (and i.e. non-public places).
On this point the jurisprudence of the Criminal Cassation has already clarified for some time, even at the United Sections, that the phonographic recording of an interview, carried out among those present or by means of transmission, by a person who is a participant, is documentary evidence that can be used even if carried out at the suggestion or on behalf of the judicial police , being, in any case, recording made by a person who is the protagonist of the conversation, extraneous to the investigative apparatus and entitled to give testimony in the trial. The phonographic recording of a conversation or communication by one of the interlocutors, even if a judicial police operator, and without the knowledge of the other (or others) does not constitute interception, lacking the fundamental requisite, that is to say the third party of the captant, who intrudes from the outside in a private, non-violable environment. ( on this point, see, expressly in this sense , the aforementioned Criminal Cassation SU n. lawfulness from a criminal point of view and that of the privacy legislation of the behavior described, which derives from the aforementioned rules, is not, however, sufficient to render it totally devoid of consequences in the context of an employment relationship. The labor legislation, in fact, prohibits the employer from using remote control tools for employees in the workplace, including registration, unless there is an authorization to install surveillance systems with strict indications about times and methods of use; but it prescribes nothing for the inverse hypothesis, that is, of recordings made by the worker in the workplace.

An interesting sentence of the Court of Cassation dealt with the case of an employee who, as part of a disciplinary procedure, had handed over to his defense a key containing recordings of conversations carried out in the workplace . The recordings involved other employees and were made without their knowledge of being informed by the human resources director.

The Supreme Court considered this to be a legitimate conduct , pertinent to the defensive thesis of the worker and not exceeding its purposes, which as such could not in any way integrate not only the criminal offense but also the disciplinary one, responding to the needs resulting from the legitimate exercise of a right , both in accordance with the indicated derogation provision of the privacy code and, in hypothetical its incompatibility with the obligations of an employment relationship and those connected to the environment in which it takes place.

But the Supreme Court, while holding the behaviorde quo exempt from disciplinary complaints, adds a fine distinction, which is worth reporting in full: "It is quite evident that the climate of tension and suspicion that arose among the unsuspecting colleagues after the revelation of the recordings, i.e. a situation relating to the employee but not constituting a breach, could at most take on relevance, in a completely different perspective. , in terms of objective incompatibility of the employee with the working environment, if such as to make the situation unsustainable, negatively affecting the organization of work itself and the regular functioning of the activity, and therefore, where the relative conditions exist, as a justified objective reason of dismissal (see Cass. 25/07/2003, no. 11556; Cass. 11 August 1998, no. 7904), certainly not from a disciplinary point of view . ".

In the wake of this sentence there is also the decision in question which, in the face of the employer's interest in an employee's loyal behavior, transparent from a behavioral point of view, underlines that there is another prevailing interest, which is to acquire evidence usable in court against the employer , for example, in a situation, in hypothesis already prejudiced by incorrect conduct or on the verge of bullying.

The worker, therefore, despite the lawfulness of the conduct from a criminal point of view (unless of course there is no disclosure of company information intended to remain secret), will not be able to disseminate a registration, for example to publish it on social networks, without the consent of those who participated in the conversation, but can use it legitimately in court if the registration is made by him in the first person as he is physically present in the workplace and if the registration is aimed at acquire documentation to assert their reasons in court in the perspective of judicial protection of a right, an interest protected primarily by art. 24 of the Constitution. In essence, it falls within the exceptions referred to in art. 51 of the Criminal Code ( exercise of a right ), already defined by the jurisprudence as of general application in the legal system and not already limited to the mere criminal field .

The usability of the registration in the process is obviously the typical one indicated in art. 2712 cc,according to which the registration constitutes documentary evidenceunless the party against which it is produced does not contest it.

On this point, the Supreme Court opportunely specifies thatfor the purposes of disavowal of a registration a mere disputeis not enough, i.e. it is not enough to generally plead that that conversation never took place or that the recorded voices do not correspond to the parties involved, but thedisavowal must " clear, detailed and explicit and materialize in the attachment ofelements certifying the non-correspondence between factual reality and reproduced reality " (Cass. n. 9526/2010 and n. 1250/2018) .

Only in this case this documentation cannot be used as evidence but will become a mere simple presumption, which must therefore be supported by further elements, including circumstantial.

The sentence in question, concluding, admits the use for defensive purposes of recordings of interviews between the employee and colleagues in the workplace without the need to obtain the consent of those present , by reason of the unavoidable need to balance the opposing demands of confidentiality on the one hand and of thejudicial protection of the right on the other and therefore to reconcile the rule on consent to the processing of data with the formalities provided for by the code of civil procedure for the protection of rights in court.

It follows the legitimacy - and therefore the inability to integrate a disciplinary offense - of the conduct of the worker who made such registrations to protect his position within the company and to pre-establish a means of proof , responding to the same, if pertinent to the defensive thesis and not exceeding its purposes, to the needs consequent to the legitimate exercise of a right , this is in the same way as the indicated derogation provision of the privacy codeor, hypothetically, its incompatibility with the obligations of an employment relationship and those connected with the environment in which it takes place, on the basis of the existence of the general reason for exercising a right.
This conclusion needs no further clarification and puts an end to a debate that has been too long.

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Gianfranco Di Garbo's picture

Gianfranco Di Garbo is a lawyer active in civil and commercial litigation, including domestic and international arbitration.

Born on 30.5.1951 and graduated with honors in jurisprudence in Genoa in 1972, he completed his studies attending to programs at  the London School of Economics (London) and the Academy of American Comparative Law (Dallas).
Gianfranco has been a member of the bar since 1977 and has been a member of the Special Register of Higher Courts since 1993.
From 1985 to 2019 he was international partner of the Milan office of the international law firm Baker & McKenzie, of which he was managing partner from 1995 to 1998 and from 2000 to 2003, coordinator of the Labor Law department from 1988 to 2010 and coordinator of the Litigation group (ordinary and arbitration) from 2012 to 2019.