No need for seizure if the screenshot is provided by the offending party

As a result of the recent reform of the offence of trafficking of influence, the area of criminal relevance has contracted to the point of depenalising conduct that was previously punished for extortionate credit. And then there is no principle of confidentiality of correspondence if the screenshots of the W WhatsApp messages are provided to the investigators by the offended persons. These are the conclusions reached by the Court of Cassation in Judgment 10252 of the Sixth Criminal Section.

The Court recalls how before the latest amendments tothe crime of trafficking in influence contained in the Nordio law, the 114 of 2024, while case law had come to the conclusion that there was no legal continuity between the crime of extortionate credit corruptive and trafficking in unlawful influence, the conviction that there was legal continuity between the latter case and that of simple counterfeiting remained, however. In fact, trafficking in unlawful influence also continued to punish the conduct of the 'salesman of smoke', i.e. those who boasted knowledge and relations that did not in fact exist.

With the amendments to the Nordio Law, however, the scenario changes radically: in the new wording of the rule, any reference to 'asserted relations' has disappeared. The new wording, in fact, confines the incriminated conduct to the 'intentional use' of 'existing relations', with the expulsion from the area of criminal relevance of the hypothesis of the boasting of non-existent relations, as highlighted by the recent sentence of the Constitutional Court, 185 of 2025, which considered the questions of constitutional legitimacy raised to be unfounded.

With regard to Whatsapp messaging, the judgment emphasises the principle, expressed in recent Supreme Court case law, according to which, with regard to means of evidence, Whatsapp messages acquired through screenshots carried out by the judicial police, on their own initiative and without urgent reasons, in the absence of a seizure order by the public prosecutor, are affected by pathological unusability, due to their nature as correspondence.

However, in the case that reached the Court of Cassation, the applicability of the principle must be excluded. In fact, "the e-mails, messages and screenshots were provided to the investigators by the offended persons themselves, so that there is no profile of secrecy of correspondence, falling within the scope of protection of Article 15 of the Constitution, since such documentation was not acquired by persons extraneous to the communication, but was delivered by the same person who had participated in the conversations".